Legislation sets required form of consent; implied, hypothetical, substituted consent insufficient
If a person has not consented to the use or removal of their human reproductive material in the form required by the governing legislation before their death, the court should give effect to the legislative prohibition against the posthumous use or removal of such reproductive material.
In L.T. v. D.T. Estate, 2020 BCCA 328, Mr. T and Ms. T were married and had a child. Mr. T had made comments about wanting a big family and siblings for his child. Not long after their child’s birth, Mr. T died suddenly, unexpectedly and intestate.
Ms. T filed an urgent after‑hours application asking the court to allow her to effect the removal of human reproductive material from Mr. T’s body after his death, to store it at an IVF clinic and to use it to create an embryo for her reproductive use, even though the donor’s consent to such use had not been given in accordance with the applicable legislation.
Upon Ms. T’s appeal of the order of the Supreme Court of British Columbia rejecting her application, the B.C. Court of Appeal dismissed the appeal, expressing regret in light of the tragic circumstances of Ms. T’s situation. The appeal court stayed the order’s effectivity for 60 days to allow Ms. T to consider her position upon her possible appeal to the Supreme Court of Canada.
In its analysis, the appeal court considered the issue of whether, if a person did not give prior written consent to the removal or use of his reproductive material before he died, his partner should nonetheless be permitted to remove such reproductive material to create an embryo for a child fathered by the deceased person.
The issue revolved around the proper statutory interpretation of the Assisted Human Reproduction Act, S.C. 2004, c. 2, and of its regulations, the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007‑137. The Supreme Court of Canada previously upheld the constitutionality of the Act and stated that Parliament had imposed the prohibition in the Act in the exercise of its criminal law powers.
The Act, in s. 8(2), clearly and unambiguously bans the removal of human reproductive material to create an embryo unless the donor of the reproductive material has given his written consent for that use in accordance with the regulations. The Act does not provide exceptions to this prohibition and, in s. 61, penalizes the contravention of s. 8. The Regulation, in ss. 6, 7 and 8 of Part 2, lays down the conditions for giving the required form of consent for the posthumous use of human reproductive material.
The appeal court said that allowing Ms. T to use Mr. T’s reproductive material would contravene the express language of the Act and of its overarching legal and moral objective, which is to safeguard the interest of the donor of the reproductive material by ensuring that the material can only be used with the donor’s express and informed written consent.
The appeal court, interpreting the Act and the Regulation together in accordance with the modern approach, stated that Parliament has definitively determined what counts as consent for permissibly removing reproductive material posthumously from a donor. This consent, as set out in the Act and in the Regulation, cannot be implied, hypothetical, imputed or substituted consent.
Parliament’s choice to penalize the use of reproductive material and in vitro embryos without the donor’s written consent shows its moral concerns relating to human reproduction vis-à-vis human autonomy, the appeal court noted.
The court disagreed with Ms. T’s submission that the prohibition was only meant to apply to a situation involving foreseeable death and not to a situation involving an unanticipated death where the couple expressed its eagerness to have more children together.
