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A highly unusual B.C. court case serves as a reminder to have a clear will in place before your death.

Mr. T. died suddenly in October 2018. Shortly afterward, 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 in vitro fertilization clinic.

Mr. T had no will and provided no written consent for such removal prior to his death.

Initially, the judge in the case made an order to preserve Mr. T’s sperm so 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.

What is implied consent?

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 order that Mr. T’s sperm could be used for reproduction without his consent.

The Assisted Human Reproduction Act 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 instead 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.

How a tragic situation could have been avoided

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.

It’s 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 over a year’s worth of extra grief, not to mention legal fees.

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.

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