“…and I leave my unborn children to…” Estate Planning and the Use of Reproductive Material after Death

It is a well-known fact, or at least it should be, that having a Will prepared prior to your demise is a wise choice. It ensures that your loved ones have faster and easier access to your property and a clear understanding of your wishes. It ultimately saves them time and money and the grief of having to deal with any outstanding issues in the midst of mourning the loss of a loved one.

A lesser-known fact is what exactly one can, and should, bequest in their Will. Of course, everyone probably knows that they can make arrangements for their assets, such as their antique jewelry, art, or even that Cancun timeshare they invested in that one time they attended a presentation. But not everyone turns their mind to some of the more unusual types of property, such as cryogenically frozen reproductive material, for example.

Nowadays, more and more couples resort to assisted reproductive techniques to start a family. The most well-known of such techniques is In Vitro Fertilization or IVF. It entails the extraction of a woman’s reproductive material (eggs) and combining them outside of the body, in a laboratory dish (in vitro), with male reproductive material (sperm). Any viable embryos resulting from this process are either implanted right away or cryogenically frozen for later use.

In contemplation of IVF, or as part of the process, many individuals choose to freeze their respective reproductive material to be used later. However, many do not know that for a surviving spouse to ever be able to use that genetic material after an individual’s passing, that individual must give prior informed and written consent to that use. Because many are unaware of this requirement, surviving spouses are left with the difficult task of taking the matter to court. We’ve seen this issue played out in more and more Canadian decisions over the last few years.

In the British Columbia case, K.L.W. v Genesis Fertility Centre[1], the surviving spouse petitioned the Court for, among other things, a declaration that the fertility clinic release her deceased husband’s frozen reproductive material to her for her reproductive use.

The couple, in this case, shared an “intense desire to have a family”[2]. Unfortunately, due to some lifelong health issues of the husband, he suffered from a succession of medical complications during the last years of this life, which postponed their plans to conceive. However, they took some of the necessary steps to prepare for IVF, with the husband undergoing a preliminary procedure involving the extraction and storage of his reproductive material. Both partners agreed that they would use In Vitro Fertilization to conceive and that even if the husband were to pass away in the meantime, the wife would use his genetic material to have their children. Sadly, the husband did pass away without a Will and without ever signing a written consent authorizing such use after his death.

After an extensive analysis of the law and the facts of the case, the Court did eventually grant the surviving spouse’s request. It held that there was sufficient evidence to suggest that if the deceased had known that written consent was required, he would have undoubtedly consented to the post-mortem use of his reproductive material.

The saving grace for the petitioner, in this case, was the extensive evidence that she was able to bring forward, proving that the deceased had repeatedly expressed his consent to friends, family, and various healthcare professionals. He mentioned on numerous occasions that he consented to and wanted his spouse to use his stored reproductive material to try to have a baby even after his passing. Thus, the Court concluded that, even though he never executed a written consent to this effect, he understood what he was consenting to and repeatedly expressed such consent verbally.

In another interesting decision that came out of British Columbia, L.T. v D.T. Estate (Re)[3], the petitioner was not as successful in convincing the Court of the deceased’s prior consent.

This decision differs from K.L.W. as it involved the post-mortem extraction of human reproductive material. The Court, in this case, issued an urgent order to retrieve human reproductive material from the deceased, after his death, at the request of his surviving spouse. As such retrieval had to be performed within 36 hours from the time of death, the Court issued an urgent order. It held that the reproductive material be stored at an IVF clinic until the matter was properly decided in due course.  

The couple had very recently become parents when the husband died unexpectedly and without a Will. The petitioner submitted some evidence from various persons close to the deceased stating that they had conversations with him before his passing in which he expressed his desire to have more children. However, it was clear from the evidence that at no point did the couple ever contemplate a scenario where the deceased’s reproductive material would be retrieved and used after his death. 

The Court held that there was insufficient evidence to point to prior informed consent. The law requires an individual to provide written, informed consent if they wish to permit the removal and use of their reproductive material after death. That consent was absent on the facts of this case. As such, the Court dismissed the petition and terminated its initial order to store the reproductive material. The British Columbia Court of Appeal later upheld the decision.

The main takeaway is that, as it stands, the law in Canada prohibits the extraction and use of reproductive material after death unless the individual in question provides informed and written consent while still alive. This requirement can easily be satisfied by adding a provision to one’s Will to that effect. Making adequate testamentary provisions for this unique kind of property in one’s Will is essential. It ensures that one’s wishes are clear, and it ultimately saves the surviving spouse the heartache of having a court decide the outcome of such an intimate matter.

[1] K.L.W. v Genesis Fertility Centre, 2016 BCSC 1621.

[2] Ibid at para 3.

[3] L.T. v D.T. Estate (Re), 2019 BCSC 2130.