For many couples, having a child can be a difficult process due to any number of health issues. Fortunately, modern medicine has made the process much easier for people who need medical assistance with having a child. However great modern medicine is, there are still challenges that couples may face related to having children. A recent decision from British Columbia shows how federal law can prevent someone from accessing reproductive material from their partner after the partner has died. The case highlights the importance of estate planning in order to make the administration of an estate as easy as possible.

Husband dies intestate

The issue was brought to court by a widow (“the wife”) whose husband died suddenly and intestate, meaning he had no will when he died. The couple had been married for three years and had a child together already. The wife stated it was their intention to have additional children.

After her husband’s death, the wife wanted to have reproductive material removed from him which could be used to create embryos to allow for the wide to have a child fathered by him.

The problem with this is that the federal law governing the use of human reproductive material, the Assisted Human Reproduction Act, and its regulations prohibit the removal of human reproductive material from a donor with the donor’s prior, informed, written consent. A judge denied an urgent after-hours motion by the wife, seeking an order that the material be removed from the husband’s body. The judge had the material removed from the husband’s body, but after hearing legal arguments, determined that the AHRA does not allow for the materials to be distributed to anyone, even the wife, without his prior informed written consent.

While unfortunate, the law is clear

On appeal, the court noted that the only issue before it was one of statutory interpretation. The law, as set out in the AHRA states,

Posthumous use without consent

(2)      No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The court stated that the law must be read in its entire context and within the spirit of the Act. In this case, the AHRA gives a “clear and unequivocal” prohibition on removing reproductive material without consent. There are no exceptions made within the law, and it applies to all people, including spouses of the deceased. There is also no deference given to courts to work outside of the law. Simply put, while unfortunate, the law is clear in its meaning and must be followed. In addition to there being a prohibition on the use of reproductive material, acting in contravention of the law is a punishable offence. In denying the appeal, the court wrote, “it is uncontroversial that a court must interpret a regulation in accordance with the modern principle and read it concurrently with, and in the context of, the enabling legislation, in order to implement the statutory scheme and give effect to the intention of Parliament.”

The court stated that it regretted having to dismiss the appeal, and recognized the painful and tragic circumstances in which it was dealing.

If you have questions about the administration about an estate you have been appointed executor to, contact the estate lawyers at Derfel Estate Law. We can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 416-847-3580 or contact us online to schedule a consultation.