Assisted reproductive technology (ART) is a rapidly growing field and becoming increasingly popular with Canadian couples. ART procedures such as in vitro fertilization (IVF) (whereby an egg is fertilized in a laboratory setting and the resulting embryo is implanted into the uterus) and artificial insemination (whereby donated sperm is implanted directly into reproductive organs) represent the last hope for many couples to have a biological child of their own. With advancements in technology and the recent availability of government funding, ART is also becoming more accessible to couples. In Canada, there are over 7,000 children born annually from IVF alone. In 2014, one to two percent of live births in Ontario were the result of infertility treatments. However, ART presents numerous complications for estate planning.

Consider the following example: Mary and John have been married for years and are having difficulties conceiving. They decide to undergo IVF and freeze several of their embryos. They eventually have two children from these embryos and are thinking of having another with the frozen embryos remaining. However, soon after the birth of their second child, they separate and John dies. Can Mary use the final embryos to have another child after John’s death? If the embryos are compromised, could Mary obtain some of John’s reproductive material after his death to create another? Would a child produced from these embryos be included as one of John’s “children” under his Will or inherit from his estate upon intestacy? This blog will seek to explore and address these issues.

Consent Required to Use Your Reproductive Material After Death

Under the Assisted Human Reproduction Act (AHRA), your reproductive material cannot be used to create an embryo without your written consent. After your death, it is illegal to remove your reproductive material to create an embryo unless you have given your prior written consent per the standards in the Consent for Use Regulations (Regulations) under the AHRA in regards to:

  • removal of your reproductive material after death; and
  • use of your reproductive material for one or more of the allowable purpose identified in the Regulations:
    • the reproductive use of the person’s spouse or common-law partner at the time of their death;
    • improving assisted reproduction procedures; or
    • providing instruction in assisted reproduction procedures.

Under the AHRA, “consent” must be given:

  • by someone who is legally competent;
  • without undue pressure or the promise of some kind of benefit or reward; and
  • by someone who is fully informed of their choices and the implications of those choices. The donor must provide a written statement confirming the information they received and that they understood it.

In essence, your reproductive material cannot be used without your prior written consent after your death and cannot be used to create a child with someone other than your spouse or common-law partner. Courts have strictly adhered to the legislative requirements for consent. For instance, in LT v DT Estate (Re), the British Columbia Court of Appeal rejected the application of a surviving spouse to extract her husband’s reproductive material post-mortem.[1] While the surviving spouse provided evidence that her husband wanted more children, the couple did not contemplate a scenario where his reproductive material would be used to create a child after his death. As such, she could not prove that he would have consented.

There is an exception to this rule if your spouse can show that you would have consented. A court has given an applicant permission to use her husband’s reproductive material after his death when the couple was undergoing IVF treatments.[2] In this case, the couple had already began the process of IVF and the applicant provided extensive evidence that her spouse would have consented if he knew that his consent was required.

Definition of “Child” Under the Succession Law Reform Act

If a child is produced from your reproductive material after your death, then they may be considered your child under provincial legislation. Ontario’s Succession Law Reform Act (SLRA)’s definition of “child” includes “a child conceived and born alive after the parent’s death,” provided that the four requirements for “posthumous conception” in subsection 1.1(1) of the SLRA are met:

  1. Your spouse must give written notice to the Estate Registrar for Ontario that your reproductive material or embryo can be used to attempt to conceive a child to which you intended to be a parent.
  2. The notice must be given within six months of the your death.
  3. The child must be born within three years of your death. The Superior Court of Justice may extend this period under subsection 1.1(3) of the SLRA upon application if they consider it appropriate in the circumstances.
  4. A court must make a declaration under section 12 of the Children’s Law Reform Act which establishes your parentage of the posthumously-conceived child.
    1. The application to the court for a section 12 order cannot be made until the child is born or more than 90 days after the child’s birth, unless the court directs otherwise.
    1. You must have consented, in writing, to be the parent of the child with the applicant conceived posthumously through assisted reproduction and must not have withdrawn your consent before your death.

If these conditions are met, then a child conceived after your death will be considered your child under the SLRA. This has several important implications, including:

  • Inheritance under intestacy. If you die without a Will, then your children have a claim to a share of your estate under intestate succession, subject to the preferential share given to your spouse. A child born alive after your death which meets the requirements under subsection 1.1(1) would likewise have a claim to your estate.
  • Dependant support claims. If you, with or without a Will, have not made adequate provisions for the support of your dependants, then the court, on application, can make an order for adequate support for your dependants from your estate. Children posthumously conceived which meet the requirements under subsection 1.1(1) are included as “dependants” under this section. However, an application for support for a child not yet conceived must be made within six months of your death.

Tips for Estate Planning

Here are some things you should do when estate planning to address the possibility of children born after your death:

  • Provide written consent for your reproductive material to be used. If you are in the process of using ART and you want your reproductive material to be available for use after your death, provide written consent to that end. This can be accomplished through documentation from the fertility clinic or including a provision in your Will addressing how your reproductive material should be used.
  • Revise your Will to exclude children born posthumously. If you want to exclude children born after your death from your Will, you can add a clause to that effect. Similar to a “born outside of marriage clause”, which protects estates from claims from children born outside of the testator’s marriage, you can exclude children born after your death. However, this will not preclude children born after your death from making support claims against your estate.
  • Ensure that your executor knows about your wishes. As assisted reproduction remains a relatively new field, your executor may not consider the possibility of children born after your death when administering your estate. To prevent any possible issues arising in the future, you should make it clear whether children born after your death is a possibility.

Contact the Toronto Estate Lawyers at Derfel Estate Law

These issues demonstrate the importance of consulting with a lawyer when preparing your Will. While it may be tempting to save costs by creating a Will without the assistance of a professional, it can result in serious consequences for your beneficiaries and estate.

The experienced estate lawyers at Derfel Estate Law in Toronto act on behalf of executors to defend various estate litigation matters, including Will challenges and other estate disputes. To learn how we can assist you with estate planning or your estate litigation dispute, call our office at 416-847-3850 or contact us online.

This blog was co-authored by Law Student, Leslie Haddock.

[1] 2020 BCCA 328.

[2] See KLW v Genesis Fertility Centre, 2016 BCSC 1621.