Section 8.1 of WESA provides as follows:
8.1 (1) A descendant of a deceased person, conceived and born after the person’s death, inherits as if the descendant had been born in the lifetime of the deceased person and had survived the deceased person if all of the following conditions apply:
(a) a person who was married to or in a marriage-like relationship with, the deceased person when that person died gives written notice, within 180 days from the issue of a representation grant, to the deceased person’s personal representative, beneficiaries and intestate successors that the person may use the human reproductive material of the deceased person to conceive a child through assisted reproduction;
(b) the descendant is born within 2 years after the deceased person’s death and lives for at least 5 days;
(c) the deceased person is the descendant’s parent under Part 3 of the Family Law Act.
(2) The right of a descendant described in subsection (1) to inherit from the relatives of a deceased person begins on the date the descendant is born.
(3) Despite subsection(1)(b), a court may extend the time set out in that subsection if the court is satisfied that the order would be appropriate on consideration of all relevant circumstances.
Unlike section 8, which applies specifically to intestacy, section 8.1 applies to both testate and intestate estates.
Reproductive Genetic Material is Property
Lam v. University of British Columbia, 2015 BCCA 2, held that human sperm or ova stored for reproductive purposes are property.
Lam was a representative plaintiff of a class of cancer patients who, before taking radiation treatments, had stored their frozen sperm at the defendant’s laboratory.
All of the stored sperm was destroyed by reason of a power interruption. One of the issues at trial was whether the plaintiff had ownership of his sperm such that he could contract for its storage to enable his personal use of the sperm at a later date.
The court found that the sperm was included in the definition of “goods” under the Warehouse Receipt Act, that the storage facility was bound by the terms of that Act, and that its exclusion clause was unenforceable.
Consent After Death
In K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621, the court granted an application brought by a widow that her late husband’s human reproductive material was her sole legal property and that it should be released for her use absolutely to create embryos.
The deceased had not given his written consent but had stored sperm during his lifetime.
The deceased had suffered with severe medical conditions throughout his life, but he and his wife strongly wanted to have a family. They agreed that the wife would use his reproductive material to conceive a child, regardless of whether or not he died.
The deceased was unaware and had not been told that he had to provide written consent to his wife’s use of his reproductive material for the purpose of creating an embryo, as required by the AHRA and its regulations. He died without having given such consent.
The deceased died intestate. The court found that he had rights of use and ownership in his reproductive material sufficient to make it property, and that on his death that property and reproductive material vested in his wife as his spouse and the sole beneficiary of his intestate estate.
The deceased had freely and repeatedly expressed his consent to his wife’s use of his reproductive material following his death, and he expressed his consent after he had the benefit of professional consultations
The court held that to deny the wife the use of his reproductive material intended by the deceased would be unfair and an affront to her dignity.
Accordingly, the court ordered that her late husband’s reproductive material be released to the wife for her use to create embryos.
The Genesis case was distinguished and not followed in L.T. v. D.T. Estate (Re), 2019 BCSC 2130. In that case the court, after hearing lengthy argument, dismissed an application by a widow that human reproductive material from her deceased husband be removed from his body, stored, and used to create embryos for the reproductive use by the widow and for no other or improper purpose.
The matter was initially urgently heard within hours after the deceased’s death in October 2018. The court allowed reproductive material to be taken from the deceased’s body and stored, pending final legal argument.
The court reluctantly came to the conclusion that the AHRA requires an individual to formalize his or her informed consent in writing if he or she wishes to permit the posthumous removal of his or her reproductive material.
The Genesis case was not followed on the basis that the deceased in that case had provided reproductive material during his lifetime to be used after his death, for the creation of an embryo. By contrast, in the L.T. case, the deceased was a young married man with one child who unexpectedly died intestate without providing his written consent or leaving any reproductive material during his lifetime.
Conclusion
“En ventre sa mère” case law has been well settled and the new frontier of litigation concerning children born after death involves the access to and use of reproductive material of both sexes. As reproductive technology becomes more advanced and available, I would expect that access to the use of stored sperm and ova will increasingly be the subject of both family law and estate litigation, as well as estate planning.