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Posthumous Use of Reproductive Tissue: Who Decides?

The law concerning assisted reproductive technology ("ART") occupies a unique space where the autonomy of the human body intersects with property rights, which historically at common law did not extend to the human body or body parts. The world's first in-vitro baby was born in 1978, but it was only much later that the law began catching up with ART. The first legislation in Canada that governs ART - the federal Assisted Human Reproduction Act (the "AHRA") - was introduced in 2004 which launched a code on the uses and prohibitions regarding human reproductive tissue. The AHRA mandates that reproductive tissue shall only be used with the donor's free and informed consent that is provided in writing, but the AHRA has also opened the approach toward treating reproductive tissue as property, employing terms such as "use" and "creation" and the prohibited actions of "purchase" and "sale".

The issue of who determines the use of preserved reproductive tissue after death has recently been before the courts both in Canada and in other common law countries that have laws similar to the AHRA which require informed consent. In the 2016 British Columbia decision K.L.W. v. Genesis Fertility Centre, an ART facility refused to release a deceased client's preserved sperm to his widow because he had failed to leave written consent - either in a will or any other document - regarding the use of his sperm following his death. The widow applied to the court for a declaration that her deceased husband's sperm was her property on the basis that she was the sole beneficiary of his estate and for an order allowing her to use the sperm for the purpose of creating embryos and conceiving a child.

The court found that the deceased had expressed his desire to have a child with his wife posthumously to numerous ART professionals, none of whom informed him that he was required to provide written consent regarding the future use of his sperm. The court found that although the consent was not in writing as required by the AHRA, consent had been provided. The court confirmed that the sperm was the property of the widow and that she was permitted to use it to create embryos.

Somewhat similar facts to K.L.W. but the absence of evidence regarding desire for posthumous conception lead to a different result in the 2011 Australian decision Re Edwards Estate, where a widow was held to be the owner of her deceased husband's sperm, but not permitted to use it to create an embryo in New South Wales. The legislation there, like the AHRA, prohibited the use of preserved sperm for the purpose of creating embryos where no written consent was provided.

In addition to the issue of consent, the use of reproductive tissue may also be subject to contract law. A 2018 Ontario decision S.H. v. D.H. found that the use of an embryo obtained from an ART bank was subject to the contract that was executed by the would-be parents with the ART facility, which provided that in the event of a future disagreement regarding the use of the embryo, the would-be mother's wishes would prevail. In S.H., the would-be mother was granted the use of the embryo and the would-be father, who did not want another child, was ordered compensation for his half of the embryo expenses. The court in S.H. noted that legal interests in reproductive tissue obtained from ART banks may be treated differently than interests in one's own personally generated reproductive tissue.

ART and succession is an area of law that has many unsettled issues that will likely see changes in the future, including bringing into uniformity the documentation of consent and of other applicable terms. At this time, there is no standard approach to documenting these terms and ART facilities, who are currently central players in this field, generally rely on their own documents to that end. The case of K.L.W. indicates, however, that ART facilities may not be best positioned to document consent.

The estate planning profession has been deliberating on how best to incorporate ART provisions into powers of attorney, letters of wishes and testamentary documents so that both the existing state of the law is reflected, as well as individual property rights, consents and wishes are documented. While there is currently no standard solution, where ART is of relevance to an individual situation, professional advice from an estate practitioner in this regard is highly advisable

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.

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