Wife Wins Fight for Deceased Husband's Sperm: Sperm Released

K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621 

While not a Wills Variation case, this case touches upon a unique angle regarding estate property.

This curious case arose after the deceased had struggled with extensive medical conditions, but he and his wife had wanted to have a family together and agreed the wife would use his reproductive material to conceive a child.  The couple had agreed that regardless of whether he died, the wife would use his reproductive material to conceive. 

Sadly, and importantly, the deceased was not informed written consent was required for his wife to use his reproductive material for the purpose of creating an embryo (s. 8(1) of the Assisted Human Reproduction Act and ss. 3(1) and 4(1) of the Assisted Human Reproduction Regulations) and he died without giving such consent. 

The deceased died intestate and the estate passed to his wife whereupon she applied for a declaration that the human reproductive material of her husband was her sole legal property and that it should be released to her for her use absolutely to create embryos. 

The court outlined much case law on the subject and is a good source of background information.

Application Granted

The circumstances of the case were extraordinary and the court found the deceased, if he had known of the requirement, would have promptly given his consent as it was the couple’s enduring wish throughout their relationship to conceive a child.  Although the consent was not in writing, the court observed the deceased’s specific consent was sufficient to satisfy the fundamental objective of the Assisted Human Reproduction Act that the donor’s consent be free and informed.  The deceased had taken extensive steps, including consulting a company which surgically retrieved sperm from him, had it frozen and stored at the respondent facility with the sole purpose of extracting and storing sperm to preserve it for use by his wife to conceive a child.  The frozen sperm was treated as the deceased’s property and only the deceased could consent to the use of the stored sperm for reproductive purposes.  The court recognized the deceased had rights of use and ownership of the reproductive material sufficient to make it Property. 

The court found, following the death, the property in the reproductive material vested in his wife as the deceased’s spouse and sole beneficiary of his intestate estate.  The couple had a moral interest to use the reproductive material to try and conceive a child and this purpose was permitted by the Assisted Human Reproduction Act.  The concern of there being a danger that the human reproductive material may be used for a commercial purpose or for prohibited experimentation did not arise. 

The facts of the case were quite unusual, but there was ample evidence the deceased freely and repeatedly expressed his consent to his wife’s use of his reproductive material following his death and this expression of consent was made after he had the benefit of professional advice and counselling.  Thus, to deny the deceased’s wife the use of reproductive material, fully intended by the deceased, would be “unfair and an affront to her dignity”. 

The deceased’s reproductive material was to be released to the wife for her use to create embryos.  

(a) Is the Reproductive Material Property?

[60]        In particular contexts, courts in various jurisdictions have held that human sperm or ovums stored for reproductive purposes are property: C.C. v. A.W., 2005 ABQB 219 (CanLII); J.C.M. v. A.N.A., 2012 BCSC 584 (CanLII); Lam v. University of British Columbia,  2015 BCCA 2 (CanLII); Yearworth v. North Bristol NHS Trust, [2009] EWCA Civ 37; Kate Jane Bazley v. Wesley Monash IVF Pty. Ltd., [2010] QSC 118 (Queensland SCTD); Jocelyn Edwards: Re the Estate of the late Mark Edwards, [2011] NSWSC 478.

[61]        In C.C. v. A.W., the parties disputed access to twins born to C.C. through a donation of sperm from A.W. Each party also claimed the four fertilized embryos that remained in a Toronto clinic.  A.W. refused to consent to the release of the remaining embryos to C.C. for her use in another attempt to become pregnant.

[62]        At paras. 20 and 21, the court found that A.W. had provided his sperm as an unqualified gift to C.C. to assist her to conceive children. The remaining fertilized embryos remained C.C.’s property. They were chattels she could use as she saw fit.

[63]        In J.C.M. v. A.M.A., the parties, during the course of their spousal relationship, each gave birth to one child using artificial insemination from sperm provided by a single donor.  When the parties separated, they entered into a separation agreement that divided all joint property of their relationship.  Through inadvertence, the separation agreement did not divide the 13 remaining sperm straws stored at Genesis.  Madam Justice Russell concluded that the remaining sperm straws should be treated as property for the purpose of dividing them upon the dissolution of the parties’ spousal relationship. In reaching that conclusion, Russell J. relied primarily upon C.C. and the decision of the England and Wales Court of Appeal in Yearworth v. North Bristol NHS Trust, [2009] EWCA Civ 37.

[111]     Here, the moral interest of [A.B.], shared by the petitioner, was to use the Reproductive Material to attempt to conceive a child with his spouse, a purpose permitted under AHRA. The danger that human reproductive material might be used for a commercial purpose or for prohibited experimentation does not arise in this case.

[112]      During the Hansard debate on the Assisted Human Reproduction Act (Bill C-13) (2nd Sess. 37th Parl.), the Minister of Health, the Honourable Anne McLellan identified free and informed consent and the prohibition of commercial trade in reproductive capacity as  fundamental objectives of the AHRA.

[113]     The Minister said this:

Bill C-56, an act respecting assisted human reproduction, is important because it would provide a legislative framework to protect the health and safety of Canadians and their offspring. It would, at the same time, offer new hope for infertile people, as well as those suffering from illness and disease.

it is important because it will fill a void. At present, Canada has no law to prohibit or regulate activities relating to assisted human reproduction. And it is equally important, because these issues are not easy ones. Nor should they be, as they go to the very heart of our values as a society, with regard to the way we build our families...

The bill before us today speaks to one of the most fundamental human desires, having a family. The truth is that approximately one in eight Canadian couples faces the challenges of infertility. Bill C-56 seeks to provide a measure of comfort and protection through various means.

There is another overarching purpose to this legislation. It is to make clear to Canadians and to the world our position on this complicated and fast changing issue. This legislation would clearly prohibit the cloning of human life. We will not let people profit from the creation of a baby or favour one type of child over another just because we have the technical capacity to do so.

The legislation opens with a statutory declaration, six principles that would guide the interpretation of the proposed law. These principles assert that: the health and well-being of children born through AHR techniques must be paramount: human health, safety and dignity in the use of assisted human reproductive techniques and related research much be protected; AHR technologies affect all Canadians but women most particularly: the principle of free and informed consent is fundamental to the application of AHR technologies: there should be no trade in the reproductive capacity of women or men, or any commercial exploitation of children or adults involved in AHR: and human individuality and diversity as well as the integrity of the human genome must be safeguarded.  [Emphasis added]

[114]     By s. 2 of the AHRA, the Parliament of Canada recognizes and declares that:

(d) the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies.

[115]     Unfortunately, [A.B.] was never informed of the requirement for his written consent to the petitioner’s use of the Reproductive Material.  As a consequence, he died without having the opportunity to provide that consent in writing.

[133]     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, [A.B.] 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.

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

[135]     [A.B.] 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.

[136]     I conclude that in the circumstances of this case, [A.B.]'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.