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Court in Canada rules against widow seeking to have a child using sperm from dead husband

The man did not provide written consent before his death,  justice rules

Clea Skopeliti
Wednesday 25 November 2020 12:57 GMT
The court has struck down the widow’s appeal 
The court has struck down the widow’s appeal  (Getty Images/iStockphoto)

A widow in Canada has been denied the permission to use her husband’s sperm to conceive a child on the grounds that he did not provide written consent before his death.

The couple, referred to in court as Mr and Ms T for privacy reasons, had been married for three years and had  a child together not long before the man’s sudden death. Ms T hoped to preserve his sperm in the hope their daughter could have a sibling.

The day after Mr T’s death on 2 October 2018, his widow contacted a fertility centre about removing his sperm and was told she had would need a court order to receive permission for the retrieval, which needs to take place within 36 hours of a death. 

Although the removal was hastily authorised at the time, an appeal court has now ruled the sperm cannot be used.

A British Columbia Supreme Court justice authorised the removal the day after Mr T’s death, ordering that the reproductive material be stored at a fertility centre. Justice David Masuhara ruled it could not be released, distributed or used without further order from the court.

In Canada, the removal of reproductive material is prohibited without the donor’s prior, informed, written consent. Although people close to the late Mr T testified that he wanted to have more children, he had not provided written consent for post-mortem removal of his sperm.

Laws regarding the use of a deceased person’s reproductive material vary internationally, with France, Germany and Sweden among the countries that ban posthumous retrieval.

In December 2019, Mr Masuhara ruled that “our policy makers require an individual to formalise their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material.  Regrettably, that is not the case here.”  He ordered the sperm to be destroyed, but the instruction was appealed.

A court justice has now struck down that appeal. Justice David Harris said: “I would dismiss the appeal. I do so with regret, aware of the painful and tragic circumstances confronting Ms T’s family.”

Mr Harris said the legislation “is a clear and unequivocal prohibition on removal of reproductive material to create an embryo unless the donor has given written consent for that use in accordance with the regulations (which he had not)".

The judge added: “I cannot agree that the prohibition is only intended to apply in the case of a foreseeable death and not an unanticipated one where a couple are planning to have children together. To read the statute in that way would be to amend it by judicial decree. We have no right to do so.”

The order has been stayed for 60 days to allow for the option of a further appeal to the Supreme Court of Canada.

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