Sometimes the law seems cruel. A good example is a recent case where a wife lost her fight to use sperm from her dead husband. The couple already had one young child, and by all accounts they both wanted more. However, the husband died “suddenly and unexpectedly.” This prompted the wife to have sperm extracted from his dead body in the hopes of creating another child, so that the existing one would have a genetic sibling. No, said the British Columbia Supreme Court. The problem was that the husband never provided written consent to use his sperm after his death.

It’s probably safe to say that no one who dies suddenly and unexpectedly will have turned their mind to the possibility that their life will end by surprise, and that their partner will want to extract genetic material from the corpse to make more offspring, so of course they should sign a paper giving consent to do so! No, that is simply not realistic. It’s hard enough to get people to file their taxes on time, or make a proper last will and testament, let alone consent in writing to posthumous parenthood in the event they get hit by a bus.

Nevertheless, the law of Canada requires it. In his decision, L.T. v. D.T. Estate (Re), Justice David Masuhara ruled that Parliament intended it to be this way. He added that the result in this case was regrettable.

The wife had argued that Parliament couldn’t possibly have intended this, and so they must have erred when they created the law. She argued that the legislation in question, Section 8(2) of the Assisted Human Reproduction Act, contains an unintentional gap, which can be filled in by a court.

No, said Justice Masuhara. At paragraphs 46 – 49 he explained why:

[46]  To accept the petitioner’s legislative gap argument that the legislature did not turn its mind to posthumous consent in the circumstances of Mr. T (i.e. sudden death where the deceased had not turned his mind to consenting to the posthumous removal of reproductive material in order to have children), I would have to accept that in drafting section 8(2) the legislature was instead turning its mind to the situation of spouses and common-law partners who desired to have children and who contemplated or anticipated one of the partner’s death (i.e. where death was not sudden and unexpected).  Specifically, I would need to find that the legislature sought to prohibit the posthumous removal and use of these persons’ reproductive material in the absence of written consent and not in the circumstances of Mr. T.

[47]  I find it extremely unlikely that the legislature only considered the need for posthumous consent for persons who desired to have children and who contemplated or anticipated their death, as opposed to persons where death is sudden, when the vast majority of spouses and common-law partners who are at a stage in their life where they are desiring to have children would be at an age where a partner’s death would more commonly be unexpected.

[48]  In other words, I would need to accept that section 8(2) and its prohibition against the posthumous removal and use of reproductive material in the absence of written consent was only intended to prohibit the posthumous removal and use of reproductive material for a very narrow segment of society, and in the absence of any clarifying language to this effect.

[49]  I am not persuaded that the legislature intended such a narrow application…

In other words, there’s no way the legislature would have turned its mind only to the “very narrow segment of society” – men who are dying and know it, and want their partner to have the option of having more children, or a child, using their sperm, after death – while turning a blind eye to the much more common situation of sudden, unexpected death.

Yes, it would be bizarre for the legislature to do that. The only thing more bizarre would be to create a law where the people who need it most – the people who die by surprise – are the very people who can’t comply with it. Because they’re dead. They can’t make written consent. They can’t even hold a pen. And again, the chances that such people would have already signed the paper, because they wanted to cover off any fertility law problems in case they get hit by a bus, are virtually nil.

Why would Parliament create this kind of law? It appears they were quite chary about the whole idea of post-death parenthood, and they wanted to put a strict limit on it. The Baird Report, which was tabled in 1993 and prompted Parliament to draft the AHRA, was quoted by Justice Masuhara as follows:

Another issue is whether storage [of the zygote] should be permitted after the death of one partner. The wish to transfer a stored zygote after the death of a partner may be understandable. It is relevant, though, that for all other couples, pregnancy is not an option when one partner has died… The potential complexities, consequences, and ramifications are unclear. Given this, it seems to Commissioners necessary to have some limits, and the death of either partner is a clear and practical limit… The Commission therefore recommends that… [z]ygotes not be stored…beyond the death of one of the gamete donors.

Justice Masuhara acknowledged that even where a partner has already consented to the retrieval and fertilization of their genetic material while alive, thus indicating a strong desire to have children with their partner, the Baird Report concluded that it was a reasonable limit to prohibit the use of zygotes after a partner’s death. And while a blanket prohibition was never legislated, a “clear and practical limit” – i.e., requiring a donor’s written consent to the posthumous use of their reproductive material – was. “Given the broad policy considerations before the policy makers,” concluded the judge, “I must respect that legislative choice.”

The wife took another volley in this case, an alternative argument that under the common law, her husband’s consent could be inferred. She argued that under the common law, consent is a complex and adaptive concept, which may be express or implied, written or oral, and may even, under certain circumstances, be conveyed by a third party.

This did not persuade the judge either. He said that, generally speaking, legislation remains “paramount” over the common law, and he noted that Section 8 of the AHRA does not simply require consent from a deceased donor, it requires written consent. Unfortunately for the wife in this case, dead men don’t write.

For advice on family law issues and fertility law issues, contact Shirley Levitan.