A recent decision from the British Columbia Supreme Court affirms a strict reading of legislation governing the posthumous use of a person's genetic material (sperm, ova, or embryos), leaving a widow unable to build the family she planned with her deceased husband.
The protection of bodily autonomy is one of the cornerstones of Canadian law. The human body is protected and regulated by a complicated network of Federal and Provincial legislation. The right not to be deprived of the security of one's person is enshrined in Section 7 the Canadian Charter of Rights and Freedoms. Provincial legislation in Saskatchewan allows an incapable individual's next of kin or appointee to make health care decisions on their behalf in controlled circumstances, and Physicians and Surgeons in all provinces are trained and required to ensure their patients are fully informed before consenting to treatment or examinations.
But who has the right to determine what happens to the body of a deceased individual who can no longer provide or withhold their consent? In Saskatchewan, the consent of a deceased person's next of kin is required in order for organ donation to occur. Executors are entitled to determine how a deceased person's bodily remains are dealt with but are bound to follow the wishes the Testator leaves in their will.
In the case of a person's genetic material, a very specific, informed, and written consent is required in order to use such material after a person's death.
Legal Framework
The Assisted Human Reproduction Act (the "AHRA") provides that a person's human reproductive material can only be used if the person has provided a written consent that contemplates the proposed use. This includes consent to the use of genetic material during and after the person's life. The Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (the "Consent Regulations") set out the requirements for a consent to use genetic material. The person must be fully informed of the proposed use and must understand how and when they can withdraw their consent.
Overall, the law and regulations governing consent to use genetic material align with the important objective of protecting human bodily autonomy.
Re LT v DT Estate
In October of 2018, a woman ("LT") brought an urgent application to remove and preserve the genetic material of her husband ("DT") following his sudden and unexpected death. LT and DT had been married for three years and had a daughter together. They often spoke of having more children.
No medical professional was able to assist LT without a court order, as the AHRA prohibits the posthumous removal of genetic material without consent. DT had no Last Will and Testament and had not executed any form of written consent.
Recognizing that a full hearing and interpretation of the applicable legislation was necessary, and that a denial of LT's emergency application would be terminal, the court authorized the removal of DT's reproductive material, and ordered that the material would be stored, without being used, pending a final order from the court.
In Re LT v DT Estate, 2019 BCSC 2130 ("DT Estate"), LT testified that she and DT had a mutual desire for more children, as they wished for their daughter and only child to have genetic siblings. LT's legal counsel argued that DT's consent could be implied from undisputed statements he made prior to his death, that LT, as DT's spouse, could consent on his behalf if he was unable to do so under provincial legislation, and that LT's circumstances identified a "legislative gap" not covered by the AHRA or Consent Regulations. The court also considered whether DT's genetic material could be considered property to be distributed through his estate.
While the court was sympathetic to LT's circumstances and did not doubt DT's intentions to have more children, in the end, the court held that it was up to the Federal Government to revise the law in this area, as current legal requirements for consent were clearly not met in LT's case. The case was distinguished from previous cases where a deceased male consented to the removal and storage of sperm during his lifetime and clearly communicated his intentions to his wife, a social worker, and nursing staff in contemplation of his death.
DT's stored genetic material was ordered to be preserved for an additional 30 days to allow LT the opportunity to seek an appeal of the decision. The appeal period has now passed, and if LT has not appealed, DT's genetic material will be destroyed.
Conclusion
DT Estate is an example of principled legislation conflicting with unanticipated and compelling personal circumstances. It offers an opportunity to reflect on what it means to protect a person's right to control their own genetic material during life and after death. It also serves as a caution for couples who are family planning to think about the unexpected circumstances that may arise ahead of time and to prepare accordingly.
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