Reasons for judgment were released recently which highlight the importance of having a clear Will. Madame Justice Masuhara outlined the facts of one such unusual situation in L.T. D.T. Estate (Re) 2019 BCSC 2130. This case involved the urgent retrieval of sperm from a recently deceased husband of the petitioner (Mr. T.)
Mr. T. had died suddenly on October 2, 2018 and shortly afterwards, his wife (Mrs. T) brought a petition under the Assisted Human Reproduction Act (AHRA) to have Mr. T’s sperm removed from his body and stored at an IVF clinic, which was ordered by the Court. Mr. T had no Will and provided no written consent for such removal prior to his death.
Madame Justice Masuhara then ordered that the status quo of Mr. T’s sperm be preserved so that the parties could make full submissions on the most important part of what Mrs. T sought in her petition: whether she could use Mr. T’s reproductive material to create an embryo for reproductive use by her. Before Mr. T. died, he and his wife had recently had their first child and the evidence was accepted that they planned on having more. However, this was not enough for the Court to make an order under the AHRA that Mr. T’s sperm could be used for reproduction without his consent.
The AHRA requires prior informed written consent for posthumous use of reproductive material. Mrs. T tried to rely on implied consent and/or provincial legislation providing for inferred or substituted consent in cases of incapacity. However, the Court did not find such an argument of assistance. The Court found that legislation was paramount and it was not open for the Court to rely on the common law where it directly contradicts or is qualified by clear and unequivocal legislative language.
Mrs. T’s situation is a tragic one. Not only did she lose her husband and partner, but she lost the ability to have children with him, despite the fact that such procreation was clearly contemplated by Mrs. T’s late husband. The problem with the law here is that it was not flexible enough to allow for a common sense determination of this important issue. Unfortunately, waiting for legislators to catch up to the real world is a lesson in extreme patience. Therefore, it is important for everyone, young or old, to ensure that they are taking positive steps to plan for the sake of their families. In this case, a visit to a solicitor or notary would likely have saved Mrs. T over a year’s worth of extra grief, not to mention legal fees.
Please click here to read the full judgement.