Court of Appeal for British Columbia in Vancouver. (File photo: Tom Zytaruk)

Court of Appeal for British Columbia in Vancouver. (File photo: Tom Zytaruk)

B.C. woman loses appeal to have second child by using late husband’s sperm

Assisted Human Reproduction Act prohibits the removal of human reproductive material from a donor without consent

A woman’s second attempt to be granted the legal right to use her late husband’s sperm to have another child has been struck down in B.C.’s Court of Appeal.

The woman, referred to as Ms. T., lost her husband after he died “suddenly and unexpectedly,” according to court documents made public on Wednesday (Nov. 25). The pair had been married for three years and had one child together.

While they had talked about growing their family, they never discussed what would happen if one or the other died – specifically to do with posthumous use of their reproductive material.

On Wednesday, the appeals court was dealt the task of considering how Ms. T’s yearning to give her child a full biological sibling worked within the legal framework of the Assisted Human Reproduction Act. That legislation prohibits the removal of human reproductive material from a donor without the donor’s prior, informed or written consent.

In the initial hearing, in which a judge struck down Ms. T’s request, she argued that many people do not know about this legislation and that while the federal government contemplated rolling out education on this act, they have yet to provide any.

While the appeals judges agreed, they determined the aspects of required consent were clearly stipulated within the law.

Ms. T also argued that reproductive material in some instances has been recognized as property, citing a decision from 2016 involving the Genesis Fertility Clinic. The judges determined that in that instance, the donor – who was suffering from a life-threatening medical condition – had consented for the removal of his reproductive material while he was alive.

Although in that instance the written consent was not complete, there was enough evidence to show overall consent.

In their reasoning, the three appeals judges determined that Mr. T likely would have consented to the posthumous use of his reproductive material if he had considered the issue. However, granting the widow permission to use her husband’s sperm would be contrary to the explicit language found within the act – set to protect the donor’s interest, they ruled.

The appeal was dismissed.

“I do so with regret, aware of the painful and tragic circumstances confronting Ms. T’s family,” Justice Harris wrote in the ruling’s conclusion.

“Given the circumstances, I would stay the order of this court for 60 days to permit the parties to consider their position on an appeal to the Supreme Court of Canada.”

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