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

Clay Helkenberg was all smiles after bringing up a gun and box of ammo from the bottom of Chilliwack Lake. (Instagram photo)
Chilliwack diver finds handgun and ammunition on the bottom of Chilliwack Lake

Clay Helkenberg has long had a gun on his want-to-find list, and finally checked it off

Cannabis plants visible under bright lights inside a large facility at Shxwha:y Village on July 6, 2018. The reserve was home to the licensed producer for Indigenous Bloom, which opened up a dispensary on the Kwaw-Kwaw-Apilt reserve. On April 12, 2021, Shxwha:y announced Health Canada approval for a licensed production facility at the village. (Paul Henderson/ Chilliwack Progress file)
Chilliwack’s Shxwha:y First Nation approved for cannabis cultivation and processing facility

It will be the first majority-owned Indigenous on-reserve licensed facility in Western Canada

Bat Packs are the newest addition to the FVRL Playground, and have everything you need to learn more about bats, and track them in your neighbourhood. (FVRL image)
Bat Packs at Fraser Valley libraries come with echometer to track bats

Packs are the newest part of the FVRL Playground inventory

A man wears a protective face covering to help prevent the spread of COVID-19 as he walks past the emergency entrance of Vancouver General Hospital in Vancouver, B.C., Friday, April 9, 2021. THE CANADIAN PRESS/Jonathan Hayward
COVID-19 spike in B.C. could overwhelm B.C. hospitals: modelling group

There are 397 people are in hospital due to the virus, surpassing a previous high of 374 seen in December

A deep cut on a humpback whale is shown in this recent handout photo in the Vancouver area. A conservation organization is warning boaters to be extra careful to prevent further harm to an injured humpback whale swimming in the Vancouver area. THE CANADIAN PRESS/HO, Ocean Wise, Vanessa Prigollini *MANDATORY CREDIT*
Boaters urged to use caution around hurt humpback off Vancouver

Ocean Wise says watchers first noticed the wound 3 days ago and believe it was caused by a vessel strike

Ron Rauch and his wife Audrey are photographed at their home in Victoria, Friday, March 5, 2021. Their daughter Lisa Rauch died on Christmas Day 2019 when a tactical officer with the Victoria Police Department shot her in the back of the head with plastic bullets after barricading herself in a room that was on fire. THE CANADIAN PRESS/Chad Hipolito
B.C. families push for changes as special committee examines provincial Police Act

Solicitor General Mike Farnworth acknowledged the need to update the legislation last year

Major-General Dany Fortin, left, looks on as Minister of Public Services and Procurement Anita Anand provides an update on the COVID-19 pandemic, in Ottawa, Tuesday, Dec. 15, 2020. The Public Health Agency of Canada has set aside up to $5 billion to pay for COVID-19 vaccines. THE CANADIAN PRESS/Sean Kilpatrick
Canada negotiating contracts to secure COVID-19 booster shots for next year: Anand

Most of Canada’s current vaccine suppliers are already testing new versions against variants

Demonstrators at the legislature on April 14 called on the province to decriminalize drug possession and provide widespread access to regulated safe supply across B.C. (Jake Romphf/News Staff)
Rally calls for decriminalization, safe supply on 5th anniversary of overdose emergency declaration

From 2016 to the end of February, 7,072 British Columbians died due to overdose

Surrey RCMP are seeking the public's help to locate three puppies stolen from a South Surrey home on April 10. (Surrey RCMP photos)
UPDATE: 1 of 3 puppies stolen from South Surrey returned to owner

American Bulldog puppy recovered after being sold at Mission car show

Two women walk past ‘The Meeting’ sculptures in White Rock’s Miramar Plaza Wednesday afternoon. (Aaron Hinks photo)
New public art in White Rock faces criticism as the ‘two Michaels’ remain in China’s custody

‘I would encourage people to go out and enjoy it’ said Vancouver Biennale founder

(Government of Canada)
Liberal MP caught stark naked during House of Commons video conference

William Amos, in Quebec, appeared on the screens of his fellow members of Parliament completely naked

Most Read