The Importance Of Written Consent: Posthumous Use Of Human Reproductive Material In L.T. v D.T. Estate, 2020 BCCA 328

• Published date: 03 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Clark Wilson LLP
• Author: Ms Jeannette Aucoin and Julia Tikhonova

The BC Court of Appeal has confirmed that the removal and use of human reproductive materials (sperm, ova, and embryos) both during one's life, and after one's death, requires prior and informed written consent.

The recent decision of L.T. v D.T. Estate, 2020 BCCA 328 ['L.T. v D.T.'] is one of the few cases in Canada that deals directly with the use of reproductive material under the Assisted Human Reproduction Act, S.C. 2004, c. 2 ['AHRA'] and its Regulations. L.T. v D.T. arose from the tragic circumstances surrounding the sudden and unexpected death of Mr. T., who left behind his wife, Ms. T., and their young child. Mr. and Ms. T had planned to have more children together, but, like most other couples, they had not turned their minds to the potential posthumous use of their reproductive material should one of them die. After her husband's sudden death, Ms. T sought an order that Mr. T's reproductive material be removed from his body, so that their child would have a biological sibling. Following an after-hours application in extremely time-restricted circumstances (the sperm would have been rendered unusable approximately 36 hours after death), an order was granted for the posthumous retrieval and storage of Mr. T's reproductive material at a fertility clinic, pending a full hearing.

At the Supreme Court hearing, Ms. T's application was dismissed on the basis that Mr. T had not provided prior written consent to the extraction or use of his sperm.

On appeal, the main issue involved the proper statutory interpretation of section 8(2) of the AHRA, which provides:

(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.

In interpreting this provision in its ordinary meaning and context, with the objectives of AHRA and intention of Parliament in mind, Harris, J.A. held that the prohibition in s. 8(2) of AHRA and ss. 6-8 in its accompanying Regulation are clear and unequivocal; they reflect Parliament's choice to emphasize...