December 14th, 2020 by FH&P Lawyers

Partner Nancy Ling recently appeared on AM 1150’s morning show with Phil Johnson to discuss a very interesting topic that is not often talked about.

A file was recently decided upon by the courts in British Columbia to do with a widow wanting to use her deceased husband’s reproductive material after he died to have a sibling for their first child. The application was denied as was her appeal. Nancy talks with Phil about why the courts decided the way they did and why it is enforced the way it is.

FH&P Lawyers · FH&P Lawyers Law Talk - Reproduction Material


Phil Johnson: Well it is a pleasure to welcome to AM 1150 Nancy Ling for Tuesday morning Law Talk. We are going to go to a subject that I think many of you will have interest in, Nancy good morning to you.

Nancy Ling: Good morning.

Phil Johnson: I appreciate you being here, through your lawyer’s eyes give me your take on the story that we're going to tell here.

Nancy Ling: You had forwarded me a case that come down recently in British Columbia, to do with a widow wanting to use her deceased husband's reproductive material to have a sibling for their existing child after he died. She made an emergency application right after he died that failed and then she appealed it and she also failed on the appeal. So I was going to talk a little bit about why and the considerations behind the law, why it was drafted the way it is and why it's enforced the way it is.

Phil Johnson: As a matter of fact I was watching a plot line of a television show last night where an individual was artificially inseminated with a sample of a man’s sperm who had that basically deposited sperm into the sperm bank because he was going to undergo cancer treatment and one of the side effects of the cancer treatment was going to be sterility this is not a delicate subject line anymore this is just reality that couples everywhere are banking sperm, are banking eggs.

Nancy Ling: There are different motivations and different reasons. Even in your example there's as many different reasons for people to use human reproductive material and store it and freeze it, as there are families and parenting arrangements these days. So in this scenario you gave, there's a difference between someone donating sperm that they don't intend to be a parent versus somebody freezing their own human reproductive material for their own reproductive purposes.

Phil Johnson: Take me to the point where the husband had done this and then unfortunately passed and then the wife decided that she wanted to have one more child and wanted to access are her husband's on his own reproductive materials.

Nancy Ling: The facts of this specific case, LT vs. DT Estate, the husband had not frozen his own reproductive material for his own reproductive use. The wife wanted it to be harvested from him after his death without his consent.

Phil Johnson: How did I miss that along the way?

Nancy Ling: There are very sophisticated nuances in this whole scheme because there's so many different reasons why someone might store, freeze or provide human reproductive material. There’s a great deal of mischief that could be done with it that the government is trying to protect against. If you go back to the very Inception of these laws when people started cloning sheep and the science behind human reproduction was advancing a very fast-paced the government realized they needed to put some laws in place to keep ahead of the science. The first part was they wanted to make sure that human reproductive material would never become property because that's a very slippery slope. They didn't want people selling human reproductive material, they didn’t want people paying for it, it’s even illegal to pay a surrogate for the purpose of acting as a surrogate. You can reimburse their expenses and pay for their rent and all kinds of other things but just to pay for an egg or pay for a surrogate, the government wanted to avoid looking at this as a property transaction.

Phil Johnson: Can you help me understand why?

Nancy Ling: Because we don't own people (laughing) we therefore don't own any material that we can turn into people and then there was also concern around making it illegal to make clones of a person, making it illegal to use someone’s reproductive materials without their written consent. You can kind of take your mind to all that science fiction ways that problems arise if there weren't restrictions on the use of people's reproductive material.

Phil Johnson: Again I apologize to you because for some reason I thought that the sperm from the male had been frozen and when you introduced the additional element that the wife wanted to have his reproductive material harvested from his body that puts a whole new context on the story.

Nancy Ling: Given the science and the urgency of these questions I believe the initial judge actually ordered it to happen pending the Court's ability to actually consider the woman's case because there's a very small window after a person dies where this can be done. The human reproductive material of the deceased was actually stored pending her case and her appeal which she then lost. To go into why the judge made the decision that he did, you go back to the history of the Assisted Human Reproduction Act and the base tenant of it, the most important principle of it, is consent. It's all about autonomy and the right to control a person's own body and that nobody can remove your reproductive material without written consent and there's no exemption for spouses, there's no exemption for implied consent they've made it very clear that there is only one way you can remove a person’s reproductive material and that is with the person’s written consent. Unfortunately this couple, they had children and planned to have more, they just didn't plan ahead, they didn't consider what would happen if one of them died, they never had that discussion and so of course it never occurred to them to give express written consent to something that they never thought of. So unfortunately without that written consent its full stop, you cannot use a person's reproductive material without it.

Phil Johnson: Where are we relative to European Nations, too many of the American states or what goes on in England or in Australia? Are we very prudish very closed, are we behind the curve or are we at the leading edge of this?

Nancy Ling: Honestly I have not looked at the way the other jurisdictions have done this. You see on TV all the time that people in the States are selling their eggs, selling their sperm, so I may be possible in the States for those to be commercial transactions but the way we’ve taken it is that it’s a slippery slope to allow people to start selling reproductive material that can be turned into another human being.

Phil Johnson: I guess I have a challenge here only in that a man and his wife are married, they have one child already, a husband dies and the wife says I'd like to have one more child and I have the opportunity to do this. I’m having a hard time understanding the reticence of the court to not grant to the woman…

Nancy Ling: You have no idea what that situation is, you are only hearing one side of the story, the man is no longer available to give his side or consent. Maybe he wouldn't want one of his children to be raised without a father, maybe he actually didn't want a second child, there is no way to know what the man in that situation actually wanted and that’s the whole point. More practically speaking, when spouses do actually have this discussion, because the problem with the case that we are talking about is that the couple never had the discussion. The woman was just asking the court to guess what the husband would have wanted. For couples that have had this discussion, for couples that have started fertilization treatment, in vitro, harvesting and storing human reproductive material, the clinics that you use have these discussions ahead of time so that you are giving informed consent to the procedures and they have you sign these forms giving written consent to how your material is going to be withdrawn and stored and used and what happens upon your death. Can your materials be used to create human beings, can it be used only by your spouse, could it be used by your spouse’s sister, could it be used for research? People have to give informed consent ahead of time because they might not have wrapped her head around the fact of what might be the result of them donating or providing this material.

Phil Johnson: Clearly then, what I hear you saying then that in these days you need to have this conversation with your spouse because tonight when you’re heading home the husband could be involved in a car accident and is on life support and the decision is made to pull the plug and the wife is in tears saying we were just talking about having our first child.

Nancy Ling: At the end of the day you are not allowed to have somebody else's kid without their consent, it’s very simple. If you never have that conversation you don't have their consent.

Phil Johnson: And if I’m hearing you that given the advancements that we have made scientifically, given the advances for in vitro, maybe this is a conversation that couples do need to have where they never would have had to before because there was no question of being able to have the child if both of the parents weren't living.

Nancy Ling: I do get a double take a lot because this is actually something we have on our Wills checklist; do you have frozen reproductive material? That generally starts the discussion but like I said they usually have had this discussion at the clinic because they have to sign all the forms and give informed consent at the outset of this process. We talk about it because we need to consider that if there is reproductive material it's quite possible that there will be a child born after the Will maker dies. So we need to understand how that child will work into the inheritance scheme of the deceased, especially given that if an embryo is frozen the mother could have that child several years after the father dies. So these are things that as estate lawyers and estate planners we need to take into consideration as well the family picture is starting to get very complex.

Phil Johnson: I was just going to say remember when life was simple?

Nancy Ling: (Laughing) Yes. Now the interplay of the Family Law Act where there can be multiple parents now not just two, under this assisted reproductive technology scheme you can have two mothers and a father, so then you go through the Wills where there's a potential Wills Variation Act for children against their parents and now it's possible for a child to have more than two parents.

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