Can You Use Your Dead Spouse’s Reproductive Material To Conceive A Child?

It sounds like science fiction; but, now more than ever, people are having children through “non-traditional” means. Whether through assisted insemination, intracytoplasmic sperm injection, or in vitro fertilization, third-party fertility specialists are receiving and storing reproductive tissues from potential parents. These advancements in technology fundamentally alter the way that society traditionally thinks about reproduction, and the full impact these technologies will have on the legal landscape have still not yet been felt.

A 2016 case out of British Columbia is a prime example of what is to come. It involves a widow asking the court’s permission to conceive a child using her deceased husband’s reproductive material.

In K.L.W. v. Genesis Fertility Centre, Jane Doe and her husband John Doe shared an “intense desire to have a family”. Unfortunately, John suffered from severe medical conditions that disrupted and postponed their plans to conceive a child. They agreed that John would store his reproductive material with Genesis Fertility Centre, and Jane would use it to conceive a child – even if John passed away beforehand.

Unfortunately, John did pass away. It was not unexpected.  Both he and Jane discussed bringing a child into the world. Shortly before John died, Jane promised him that she would have their baby.

After John’s death, Jane tried to fulfill her promise to her dying husband. She asked the fertility clinic to help her conceive a child using John’s stored sperm. At that point, Jane ran into a legal roadblock.

In 2004, the federal government of Canada enacted the Assisted Human Reproduction Act. This legislation clarifies the laws surrounding what is permissible, and impermissible, with respect to reproductive technology. In particular, subsection 8(1) of that Act states:

8(1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose. (Emphasis added)

John had only given verbal consent for Jane to conceive their child using his stored reproductive material. He had not been informed of the requirement to provide written consent. Without written consent, the fertility clinic refused to give Jane her husband’s sperm, or to help her conceive a child using it.

Jane brought a court application. She provided sworn statements from her husband’s medical doctor confirming that John expressed verbal consent that Jane be able to conceive using his stored reproductive material.

Afterwards, even though the consent was not given in writing, the court ruled in Jane’s favour. The court writes:

The circumstances of this case are extraordinary. [John Doe] freely and repeatedly expressed his consent to the petitioner’s use, following his death, of the Reproductive Material. He communicated his agreement to the petitioner’s use of his stored sperm to the petitioner, to his social worker, to a nurse at the [content redacted] hospital where his [content redacted] was performed, to his family doctor, and to Genesis.

[John Doe] fully understood that the Reproductive Material would be used in accordance with his wishes to create an embryo, and would be used, following his death, by the petitioner to attempt to conceive a child.

One of the guiding principles of the AHRA is the promotion and application of free and informed consent as a fundamental condition for the use of human reproductive technologies. Another guiding principle, set out in s. 2(b), is that the benefits of the technology for individuals, families and society can be most effectively secured by appropriate measures for the protection and promotion of human health, safety and dignity. Here, [John Doe] and the petitioner sought to use the technology in order to have a child of their own. They took appropriate steps to ensure that the [content redacted] would not be passed to any child they conceived through in-vitro fertilization.  They consulted with medical specialists about the safe use of the technology.

To deny the petitioner the use of the Reproductive Material intended by [John Doe] would be both unfair and an affront to her dignity.

[John Doe] expressed his consent to the petitioner’s use of the Reproductive Material after he had the benefit of professional counselling from his [content redacted] social worker, a nurse trained in [content redacted] fertility issues and his family doctor.

I conclude that in the circumstances of this case, [John Doe]‘s consent, although not in writing, specifically contemplated the petitioner’s reproductive use of his stored sperm after his death, and was sufficient to satisfy the fundamental objective of the AHRA that the donor’s consent must be both free and informed.  Accordingly, the Court may order the release of the Reproductive Material to the petitioner to enable her use of that material for the purpose of creating an embryo. (Emphasis added)

The court chose to interpret the requirement for written consent as a mechanism for ensuring that reproductive materials are given freely and in an informed manner. With the “extraordinary” facts presented, the court was willing to rule in Jane Doe’s favour – even though the letter of the law was against them.

Jane Doe won this case because of the unusual facts present. It does not mean that people can rely on verbal consents instead of the legally required written consent. If you or your partner have some stored reproductive materials, and if you both want to ensure that it can be used if one of you passes away, then make sure that this is stated in writing.

If you have questions any questions about the legal ramifications of different reproductive technologies, give us a call –we’re happy to help.