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

An Abbotsford man was killed in a motor vehicle accident on Highway 3 on Monday, Jan. 18. (Black Press file photo)
Abbotsford man killed in Highway 3 crash near Hedley

Fatality was discovered by passing tow truck driver

Mackenzie Ashley-Lynn Gilfillan was last seen Jan. 10 in the 45000-block of Menholm Road. (RCMP photo)
RCMP asking for help to find missing Chilliwack woman

Mackenzie Ashley-Lynn Gilfillan was last seen Jan. 10 in the 45000-block of Menholm Road

Abbotsford Recreation Centre is among the local arenas that are part of an in-depth review and analysis by the city. (File photo)
City of Abbotsford conducts survey on six local arenas

Input is part of in-depth analysis of current and future needs

A warrant was issued for Darwyn Sellars, 31, on Nov. 4, 2019, according to Black Press. (CrimeStoppers)
B.C. man’s rack of charges include Abbotsford and Williams Lake offences

Sentencing delayed against Darwyn Sellars, who pleaded guilty to lengthy list of charges

Singletree Winery in Abbotsford has opened two domes where customers can enjoy wine tastings and local goodies. (Photo by Megan Ashley Creative)
Abbotsford winery first in Fraser Valley to open wine-tasting domes

Singletree Winery offers two themed transparent enclosures

Provincial health officer Dr. Bonnie Henry prepares a daily update on the coronavirus pandemic, April 21, 2020. (B.C. Government)
B.C. adjusts COVID-19 vaccine rollout for delivery slowdown

Daily cases decline over weekend, 31 more deaths

A female prisoner sent Langford police officers a thank-you card after she spent days in their custody. (Twitter/West Shore RCMP)
Woman gives Victoria-area jail 4.5-star review in handwritten card to police after arrest

‘We don’t often get thank you cards from people who stay with us, but this was sure nice to see’: RCMP

An elk got his antlers caught up in a zip line in Youbou over the weekend. (Conservation Officer Service Photo)
Elk rescued from zip line in Youbou on Vancouver Island

Officials urge people to manage items on their property that can hurt animals

A Trail man has a lucky tin for a keepsake after it saved him from a stabbing last week. File photo
Small tin in Kootenay man’s jacket pocket saved him from stabbing: RCMP

The man was uninjured thanks to a tin in his jacket

Tla-o-qui-aht First Nation Chantel Moore, 26, was fatally shot by a police officer during a wellness check in the early morning of June 4, 2020, in Edmundston, N.B. (Facebook)
Frustrated family denied access to B.C. Indigenous woman’s police shooting report

Independent investigation into B.C. woman’s fatal shooting in New Brunswick filed to Crown

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

Delta Police Constable Jason Martens and Dezi, a nine-year-old German Shepherd that recently retired after 10 years with Delta Police. (Photo submitted)
Dezi, a Delta police dog, retires on a high note after decade of service

Nine-year-old German Shepherd now fights over toys instead of chasing down bad guys

Nurses collect samples from a patient in a COVID suspect room in the COVID-19 intensive care unit at St. Paul’s hospital in downtown Vancouver, Tuesday, April 21, 2020. (THE CANADIAN PRESS/Jonathan Hayward)
5 British Columbians under 20 years old battled COVID-19 in ICU in recent weeks

Overall hospitalizations have fallen but young people battling the virus in hospital has increased

Most Read