One Canadian woman’s dreams of using her deceased husband’s sperm to give their daughter siblings was dashed by a recent court order. In that opinion, the British Columbia court held that under Canada’s Assisted Human Reproduction Act (AHRA), the woman could only use her husband’s sperm for reproduction if he had specifically consented in writing to its use for that purpose. Unfortunately, the man died unexpectedly and without a Will or other written instructions for his loved ones.

When the man died suddenly in October 2018, he and his wife had recently become parents for the first time. The pair reportedly verbally expressed their desire to expand their family to their loved ones. Shortly after her husband’s death, the wife obtained a court order to retrieve her deceased husband’s sperm. However, the authorization provided at that time was limited to retrieval. In other words, she was told the fertility clinic that assisted with preserving her husband’s sperm could take no further action until the court issued a further ruling on the matter.

Ultimately, the court interpreted the AHRA on its plain language. The relevant provision of the law says “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.” AHRA, S.C. 2004, c. 2, section 8(2).

The wife argued that the court should instead apply a common law understanding of “consent,” however the court rejected that argument.

For individuals and couples who want to expand their families, regardless of what the future might hold, this case illustrates why it is so important to document your wishes — and to keep those wishes updated if they change over time.

To learn more about how The Estate Planning & Legacy Law Center can help you create an estate plan that meets your wishes and needs, contact us today!