Mr. A.B. had serious medical problems throughout his life. He and his wife, K.L.W., wished to have children. He arranged to have his sperm stored by Genesis Fertility Centre, so that his wife could use his reproductive material to conceive a child. He wanted her to be able to do so after his death.
A.B. died without a will, and K.L.W. sought to have his sperm released so that she could conceive his child.
Unfortunately, no one advised the couple of the requirement in s. 8(1) of the Assisted Human Reproduction Act, S.C. 204, c. 2 (“AHRA”) and ss. 3(1) and 4(1) of the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”) that A.B. consent in writing to K.L.W.’s use of his sperm to create embryos after his death. A.B. did not sign a written consent, but there was clear evidence from several witnesses that he had said that he had wanted his wife to be able to conceive his child even if he died.
Without the written consent, Genesis Fertility Centre, would not release the reproductive material to K.L.W.
In K. L.W. v. Genesis Fertility Centre, 2016 BCSC 1621, K.L.W. asked the Supreme Court of British Columbia to declare that her late husband’s reproductive material was her is her legal property, and for an order that the Genesis Fertility Centre release the reproductive material to her for her use to create embryos for her reproductive use.
Is reproductive material property?
After considering several cases both in British Columbia and other jurisdictions, Mr. Justice Pearlman held that the reproductive material was property in the context of this case. Although there are legislative restrictions based on public policy that do not apply to other types of property, including prohibitions on the sale of reproductive material, the courts have held that reproductive material is property in the context of claims in which it has not been properly stored and in division of family property.
Mr. Justice Pearlman quoted from Madam Justice Bennett’s reasons for judgment in Lam v. University of British Columbia, 2015 BCCA 2, a case in which the Court of Appeal affirmed that sperm damaged when a freezer malfunctioned was property to which the provisions of the Warehouse Receipt Act (“WRA”) applied. Mr. Justice Pearlman wrote:
 At paras. 113 and 114, Bennett J.A. stated:  The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A., 2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case.  Not all of Professor Honoré’s 11 incidents of ownership need to be present for ownership to arise (Yearworth [v. North Bristol NHS Trust,  EWCA Civ 37] at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts.  In concluding that each of the sperm donors had sufficient ownership of their stored sperm for it to be “property” and thus “goods” within the meaning of the WRA, Bennett J.A. applied the same analytical framework as the Court had adopted in Yearworth. The donors had ejaculated the sperm; contracted to store the sperm for their own future use; paid a fee for storage; and could consent to the sperm being tested. Further, they could terminate the storage agreement; could consent to the release of the sperm to their physician to be used by their spouse; and could exclude all others from using the sperm. Although legislation or the storage agreement precluded the donors from disposing of the sperm by leaving it to someone in their will or from selling the sperm, they nonetheless had sufficient rights in relation to their own sperm for it to be defined as property.
Because A.B. died without a will, and did not leave any descendants, K.L.W. as his surviving spouse is the sole beneficiary of his estate. Accordingly, pursuant to section 20 of the Wills, Estates and Succession Act, she is entitled to the reproductive material.
This leaves the fundamental question in this case: may K.L.W. use her husband’s sperm to conceive a child despite the fact that he did not provide consent in writing?
Mr. Justice Pearlman held that A.B. had consented to his wife’s use of the reproductive material, and that it is consistent with the underlying principles of the legislation to allow her to do so. He wrote:
 The circumstances of this case are extraordinary. [A.B.] freely and repeatedly expressed his consent to the petitioner’s use, following his death, of the Reproductive Material. He communicated his agreement to the petitioner’s use of his stored sperm to the petitioner, to his social worker, to a nurse at the [content redacted] hospital where his [content redacted] was performed, to his family doctor, and to Genesis.
[A.B.] fully understood that the Reproductive Material would be used in accordance with his wishes to create an embryo, and would be used, following his death, by the petitioner to attempt to conceive a child.  One of the guiding principles of the AHRA is the promotion and application of free and informed consent as a fundamental condition for the use of human reproductive technologies. Another guiding principle, set out in s. 2(b), is that the benefits of the technology for individuals, families and society can be most effectively secured by appropriate measures for the protection and promotion of human health, safety and dignity. Here, [A.B.] and the petitioner sought to use the technology in order to have a child of their own. They took appropriate steps to ensure that the [content redacted] would not be passed to any child they conceived through in-vitro fertilization. They consulted with medical specialists about the safe use of the technology.
 To deny the petitioner the use of the Reproductive Material intended by [A.B.] would be both unfair and an affront to her dignity.  [A.B.] expressed his consent to the petitioner’s use of the Reproductive Material after he had the benefit of professional counselling from his [content redacted] social worker, a nurse trained in [content redacted] fertility issues and his family doctor.  I conclude that in the circumstances of this case, [A.B.]’s consent, although not in writing, specifically contemplated the petitioner’s reproductive use of his stored sperm after his death, and was sufficient to satisfy the fundamental objective of the AHRA that the donor’s consent must be both free and informed. Accordingly, the Court may order the release of the Reproductive Material to the petitioner to enable her use of that material for the purpose of creating an embryo.