Canada: Uncharted Territory: Rights Of And Rights To Reproductive Material And Embryos

Last Updated: January 30 2017
Article by Sarah Fitzpatrick

While assisted reproduction is no longer novel, the law is still not settled as to what rights people have to reproductive material and the right of embryos conceived through assisted reproduction. There have been a number of recent cases on how genetic and reproductive material and embryos are dealt with under trust and estate law.

A recent case involving two high profile celebrities has been making waves in the past month. Sofia Vergara and Nick Loeb have been engaged in legal battles over two cryopreserved embryos that they conceived through in vitro fertilization. The consent of both parties is required in order for the embryos to continue their development.

The most recent development in Ms. Vergara and Mr. Loeb's legal disputes is a petition filed by Mr. Loeb on December 7, 2016 in the State of Louisiana. The plaintiffs of the petition include Human Embryo #4 HB-A ("Emma"), Human Embryo #3 HB-A ("Isabella"), and the Trustee of Emma and Isabella Trust No. 1 (the "Trust"). When/If Emma and Isabella are born alive the Trust will become irrevocable, and they will become the sole income and principal beneficiaries of the Trust. The allegation is that Emma and Isabella have an expectation of an inheritance from the Trust and that their inheritance is being blocked by Ms. Vergara's refusal to allow them to be born.

The claims being made are novel: not only are they arguing that unborn persons have rights in a trust, but that the embryos should be allowed to develop in order to obtain their inheritance. The reason the petition is being brought in the State of Louisiana is that the state has legislation that recognizes human embryos as juridical persons, prohibits their destruction and requires that any disputes regarding them be resolved in their best interests. It is possible that not only will the case be decided in favour of the embryos, but that it could also be influential in the development of trust law in other jurisdictions.

A petition a bit closer to home that involves the intersection of estates and rights to human reproductive material is the recent British Columbia decision of K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621.

In K.L.W., K.L.W. brought a petition for a declaration that the reproductive material of her deceased husband was her sole legal property. The petitioner and her husband wanted to have a family, however her husband suffered from a medical condition that he ended up passing away from. Prior to his death, the husband went to a fertility clinic to have his reproductive material preserved for the purpose of his wife conceiving an embryo. The husband, however, died without consenting (in writing) to his wife using the reproductive material, as required under the Assisted Human Reproduction Act (Canada) ("AHRA"). After the husband's death, the fertility clinic continued to hold the reproductive material, but could not release it to the petitioner without that written consent.

The purpose of the petition was to determine whether the reproductive material was property; whether the reproductive material passed to the petitioner as the deceased's sole heir; and whether the court could order the fertility clinic to release the reproductive material. The court found that while the husband could not sell his reproductive material, he had the right to authorize its reproductive use. Consequently, he had sufficient rights of use and ownership over the reproductive material for it to be his property. As the husband died intestate, the reproductive material vested in the petitioner as his intestate heir.

While the husband did not consent in writing to the petitioner using his reproductive material, he had orally communicated his consent to her use of it after his death to the petitioner, his social worker, a nurse, his family doctor, and to the fertility clinic. The court found that this oral consent was sufficient to satisfy the objective of the AHRA and ordered the release of the reproductive material to the petitioner.

K.L.W. confirms that reproductive material can be passed on to someone else through your estate. However, if the intention is that the reproductive material is to be used by the heir, the testator must also comply with the legislative regime on assisted reproduction.

It is becoming increasingly more common for clients to make provisions in their wills regarding their genetic and reproductive material. Miller Thomson can assist in ensuring that your estate plan appropriately deals with these wishes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Sarah Fitzpatrick
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