Deceased's intention sufficient to release reproductive material to wife in circumstances where no written consent

W. (K.L.) v. Genesis Fertility Centre | 2016 BCSC 1621 | British Columbia Supreme Court

Estates and trusts --- Estates — Intestate succession — Inheritance by spouse — Wife

Throughout his life deceased struggled with severe medical conditions, but deceased and wife wanted to have family so they agreed wife would use deceased's reproductive material to conceive child, regardless of whether or not he died — Deceased was not told he had to provide written consent and he died without giving written consent to wife's use of reproductive material for purpose of creating embryo as required by s. 8(1) of Assisted Human Reproduction Act and ss. 3(1) and 4(1) of Assisted Human Reproduction (Section 8 Consent) Regulations — Deceased died intestate and estate passed to wife — Wife applied for declaration that human reproductive material of deceased was her sole legal property and that it should be released for her use absolutely to create embryos — Application granted — In light of deceased's enduring wish throughout relationship to conceive child with wife, he would have promptly given his consent in writing to wife's use of reproductive material following his death if requirement for consent been brought to his attention — Deceased generated sperm that was surgically retrieved from him, frozen and stored at respondent facility, and sole purpose for extracting and storing sperm was to preserve it for later use by wife and deceased to attempt to conceive child — While deceased was alive facility stored frozen sperm and treated it as deceased's property, and only deceased could consent to use of stored sperm for reproductive purposes — Deceased had rights of use and ownership in reproductive material sufficient to make it property — Following deceased's death, property in reproductive material vested in wife as deceased's spouse and sole beneficiary of his intestate estate — Moral interest of deceased, shared by wife, was to use reproductive material to attempt to conceive child, which was purpose permitted by Act, and danger that human reproductive material might be used for commercial purpose or for prohibited experimentation did not arise — Circumstances of case were extraordinary, as deceased freely and repeatedly expressed his consent to wife's use of reproductive material following his death, and he expressed his consent after he had benefit of professional counselling — To deny wife use of reproductive material intended by deceased would be unfair and affront to her dignity — In circumstances, deceased's consent, although not in writing, specifically contemplated wife's reproductive use of stored sperm after his death and was sufficient to satisfy fundamental objective of Act that donor's consent must be free and informed, and reproductive material was to be released to wife for her use to create embryos.