In the winter of 2019, a B.C. court made the decision, in the unfortunate circumstances of L.T. v. D.T. Estate (Re), 2019 BCSC 2130 (upheld on appeal), to dismiss a widow’s application to conceive using the reproductive material of her deceased husband. Ultimately, the decision meant the material would be destroyed. Although it seemed clear that her husband would have wanted their only child to have siblings, his wishes were never expressed in writing.

The result arises from the strict federal rules under the Assisted Human Reproduction Act (AHRA) and its Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (“Consent Regulations”). Under federal criminal law, after an individual passes away, their reproductive material or embryos may not be used unless they had given prior, informed, written consent to its removal and use for that purpose.

The question is, what does a person need to do to avoid this result? The answer is a carefully drafted will and properly executed consent documents.

Informed Consent Documents

A person’s intentions and informed consent must be set out in a Statutory Declaration that is:

• in writing;
• signed by the donor; and
• signed by a witness.

To achieve the informed consent, a donor will review the mandated set of information on assisted reproduction, and must consider scenarios such as:

• The specific potential uses of their reproductive material;
• The number of embryos they intend to create;
• The removal and use of reproductive material after death – only a spouse or common-law partner can be granted the consent to extract the deceased’s material after death;
• The use of a gestational surrogate if their spouse or common-law partner will be the parent of the child; and
• If the individual wants to be a legal parent of a child born after their death

The Consent Regulations do not allow a court to look at other evidence of consent if the prior, informed, written consent does not exist.

We also recommend that the Will contain language that is consistent with the written consent documents.

The very technical nature of the Consent Regulations make the proper and cautious execution of the will and consent documents highly important. If you have questions on making your wishes known contact a member of our Wills & Estates Team – we’re here to help.