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.”

Court

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

This woman is one of two people the Agassiz RCMP are asking for assistance in identifying after a string of alleged thefts in Popkum. (Agassiz RCMP)
Agassiz RCMP ask for help to identify suspects in Popkum thefts

Images of the two suspects were captured on surveillance footage between Jan. 10 and 16

Empty Royal Hotel windows are seen on Thursday, Jan. 14, 2021 along Main Street in downtown Chilliwack. They will soon be home to an upcoming project called Art on Main. (Jenna Hauck/ Chilliwack Progress)
Local talent sought for ‘Art on Main’ display in downtown Chilliwack

Art on Main a way for local artists to display work in windows of Chilliwack’s Royal Hotel

The Chilliwack Local Health Area saw 119 COVID-19 cases in the week of Jan. 10 to Jan. 16, 2021. (BCCDC)
Weekly Chilliwack COVID case numbers on the decline

BCCDC reports show 119 cases last week down from 140 the week before that

Abbotsford’s Tradex has been transformed into a volleyball and basketball facility with Open Court. (Instagram photo)
Abbotsford’s Tradex transforms into sports facility

Open Court program hosting volleyball and basketball teams for practices and possibly games

Businesses continue to struggle under COVID-19 restrictions as the pandemic reaches the one-year mark. (B.C. government)
Another 564 COVID-19 cases, mass vaccine plan coming Friday

15 more deaths, community cluster declared in Williams Lake

A specialized RCMP team is investigating a suspicious trailer, which might have connections to the illicit drug trade, found abandoned outside a Cache Creek motel. (Photo credit: <em>Journal</em> files)
Police probe U-Haul trailer linked to illicit drugs left outside Cache Creek motel

Hazardous materials found inside believed to be consistent with the production of illicit drugs

Premier John Horgan leaves the podium following his first press conference of the year as he comments on various questions from the media in the Press Gallery at B.C. Legislature in Victoria, B.C., on Monday, January 13, 2020. THE CANADIAN PRESS/Chad Hipolito
Interprovincial travel restrictions a no-go, Horgan says after reviewing legal options

The B.C. NDP government sought legal advice as concerns of travel continue

Gem Lake Top, at Big White Ski Resort, seen at Jan. 8. (Big White Ski Resort)
Big White cancels $7.3M in lift tickets, accommodations due to COVID-19 orders

Since November, the ski resort has been forced to make several changes

Darlene Curylo scratched a $3M ticket, BCLC’s largest ever scratch and win prize. (BCLC)
Kelowna woman in shock after winning BCLC’s largest-ever instant-ticket prize

Darlene Curylo couldn’t believe her eyes when she saw the amount of money she’d won from a scratch ticket

While each person has different reasons for becoming homeless, a UBCO study shows they learn through their interactions with different services to perform ‘as homeless’ based on the expectations of service providers. (Contributed)
Kelowna homeless forced to ‘perform’ for resources, says UBCO study

One participant in the study said ‘It is about looking homeless, but not too homeless’

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Gov. Gen. Julie Payette takes the royal salute from the Guard of Honour as she makes her way deliver the the throne speech, Wednesday, September 23, 2020 in Ottawa. THE CANADIAN PRESS/Fred Chartrand
Gov. Gen. Julie Payette resigns, apologizes for ‘tensions’ at Rideau Hall

Payette, who is the Queen’s representative in Canada, has been the governor general since 2017

Grounded WestJet Boeing 737 Max aircraft are shown at the airline’s facilities in Calgary, Alta., Tuesday, May 7, 2019. WestJet will operate the first commercial Boeing 737 Max flight in Canada today since the aircraft was grounded in 2019 following two deadly crashes. THE CANADIAN PRESS/Jeff McIntosh
Passengers unfazed as WestJet returns Boeing 737 Max to service on Vancouver flight

After a lengthy review process, Transport Canada cleared the plane to return to Canadian airspace

Most Read