In previous blogs, we have discussed what happens to frozen embryos when a couple breaks up and how to address the possibility of children born after your death through assisted reproduction technologies. But how will your stored reproductive material be dealt with after your death? Will the material be disposed of, or does the material form part of your estate to be passed on to a selected beneficiary?
While reproductive material may be considered property that forms part of your estate, the use of reproductive material in Canada is strictly governed by the Assisted Human Reproduction Act, S.C. 2004, c. 2 ("AHRA"). The AHRA is a consent-based regime; any reproductive material cannot be used without the donor's consent, as prescribed by the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137 (the "Regulations").
The AHRA addresses three types of reproductive material: reproductive material used to create an embryo, reproductive material posthumously retrieved from a donor, and in vitro embryos, each governed by sections 8(1)-(3), respectively. In each case, the reproductive material cannot be used without the donor's written and informed consent.
Consent under the AHRA
The Regulations set out how consent to use someone's reproductive material must be given (and withdrawn) and the purposes for which consent can be given.
The Regulations emphasize that consent must be both informed and in writing. When providing consent, donors must sign a document confirming that they were informed in writing of the permitted purposes for the reproductive material, how consent may be withdrawn, that in vitro embryos may be created in excess of his reproductive needs, and how excess embryos can be dealt with.1 The consent provided by the donor must also indicate the specific purpose for which the reproductive material can be used.2
Additionally, consent must be given by someone who is legally competent, not under duress or upon the promise of a reward, and over the age of eighteen.
The Regulations limit the permissible purposes to one or more of the following:
- the donor's own reproductive use;
- the reproductive use of a third party;
- improving assisted reproduction procedures;
- providing instruction in assisted reproduction procedures; or
- if the reproductive material is an embryo, for a specific research project.
If the reproductive material is removed from the donor posthumously, the material can only be used by the donor's spouse or common law partner, for improving assisted reproduction procedures, or providing instruction in assisted reproduction procedures.
If the reproductive material is an embryo and the donors were a couple, then the consent may be withdrawn by either spouse or partner. Spouses or common law partners will continue to be considered donors of an embryo even after the breakdown of their relationship and if neither spouse or partner contributed reproductive material to the embryo.3 The only way that an individual's "donor status" can be removed is if one spouse or partner contributed genetic material to the embryo and one did not; in that case, upon the breakdown of the relationship, the spouse or partner who contributed genetic material to the embryo is considered the sole donor.4
What if I Don't Provide my Consent?
Broadly speaking, the AHRA does not permit a donor's reproductive material to be used without written consent. In Ontario, courts have strictly followed the consent-based regime.
In SH v. DH,5the Court of Appeal denied a woman's request to use the embryo created during her marriage to her ex-husband when her ex-husband withdrew his consent. Even though neither spouse's reproductive material was used to create the embryo and the couple had divorced, they were both considered "donors" under the AHRA; as such, consent was required from both parties.
Likewise, in Singh v. Mount Sinai Fertility Centre,6 the court denied the applicants' request to use the frozen sperm of their late son to create an embryo. Although their son had signed a form consenting for his sperm to be used in the future or after his death, and their son had verbally expressed his wishes that it be used by his parents to create a child after his death, the consent did not provide for reproductive use by a third party after his death.
There may be an exception if the court finds that there was implied consent. In KLW v. Genesis Fertility Centre,7the British Columbia Superior Court granted a widow's application to use her late husband's frozen sperm to have a child, even though he did not provide written consent pursuant to the AHRA. The court concluded that the sperm was property, formed part of his estate, and was passed to his wife upon his death. Notably, the court also emphasized that the couple had planned to use the sperm for this purpose and were unaware of the requirements for written consent; as such, the late husband's consent could be implied in the circumstances.
Drafting a Will to Include Reproductive Material
As this blog shows, it is not enough for you to simply state your preferences regarding reproductive material in your Will; if you want your partner or another third party to be able to use the material after your death, there are specific legal requirements that must be met. Namely, you must provide explicit written consent for the intended use of your reproductive material, and the purpose must be one that is allowable under the AHRA. You should also consider the following:
- Estate Trustee: Ensure that the estate trustee named in your Will knows your wishes regarding your stored reproductive material and has instructions on how to access or retrieve it after your death.
- Posthumous Conception: If you have a plan to have your reproductive material used after your death, you should consider the possible impact of posthumously-born children. Under the Succession Law Reform Act, S.O. 1990, c. S.26, a child conceived and born alive after your death may have a claim to your estate under the rules of intestacy and have standing to make a dependant support claim against your estate. When preparing your Will, also consider whether you want to include any children conceived and born after your death.
This blog was co-authored by Articling Student, Leslie Haddock.
Footnotes
1. Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137, enacted pursuant to the Assisted Human Reproduction Act, S.C. 2004, c. 2, ss 3, 7, and 12 [Regulations].
2. Ibid, ss 4, 8, and 13.
3. SH v DH, 2019 ONCA 454 at paras 43-46 [SH].
4. Ibid at para 46; Regulations, supra, s 10(3).
5. SH, supra.
6. 2024 ONSC 2853.
7. 2016 BCSC 1621.
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.
