Can someone remove your sperm or ova from your body after you die - and use it to create a child? The answer is complicated. Technically this can be permitted under the Assisted Human Reproduction Act (AHRA). However, in order for it to be lawful, the deceased person must have provided consent in writing before death. And not just any consent in writing will do.
This means that merely sending a text message saying "honey, you can use my sperm after I die to have a baby" is not enough, legally speaking.
The consent must be drafted in a particular way so as to comply with special regulations under the AHRA.
The AHRA consent regulations state the following:
Before a person removes human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, the person shall have a document signed by the donor stating that, before consenting to the removal, the donor was informed in writing that
- (a)the human reproductive material will be removed in accordance with the donor’s consent to create an embryo for one or more of the following purposes, namely,
- (i) the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner,
- (ii)improving assisted reproduction procedures, or
- (iii)providing instruction in assisted reproduction procedures;
- (b)if the donor wishes to withdraw their consent, the withdrawal must be inwriting;
- (c)the withdrawal is effective only if the person who intends to remove the human reproductive material is notified in writing of the withdrawal before the removal of the material; and
- (d) human reproductive material removed from the donor cannot be used for a purpose mentioned in paragraph (a) unless the person who intends to make use of the material has the donor’s written consent under Part 1 respecting the use of the material.
This means that someone who wants to give their spouse permission must sign "a document" that says they were informed in writing that they authorize their sperm/egg to be removed from their body after death for the reproductive use of their spouse or common-law partner; that they understand that if they want to withdraw their consent it must be in writing; that withdrawing consent is only effective if done so before the sperm/egg is removed (admittedly, that one seems kind of obvious); and that the spouse or common-law partner needs this written consent to use the sperm/egg to have a child.
In order to lawfully remove sperm or egg from a person, the health professional would need to have a copy of this consent in writing.
Without this consent in writing, a spouse left behind is likely not able to have a child with their late partner's sperm/eggs. And sadly, this is not merely hypothetical.
There was a case in B.C. in which a woman wanted to be able to use her late husband's sperm to have a child (they already had one child together). The woman did not have her husband's prior written consent. The woman sought permission from a judge to use her husband's sperm to have a child- and lost. She appealed to the Court of Appeal and lost again. The Court said the following:
 The effect of the AHRA and the Regulation read together is unequivocal and clear. In the exercise of its power over the criminal law, Parliament has declared definitively what will count as consent for permissibly removing reproductive material posthumously from a donor. No other forms of “consent” can have any application in rendering the posthumous removal of reproductive material lawful. Implied, hypothetical, imputed, or substituted consent are simply not consent for the purpose of avoiding the prohibition set out in s. 8 and the Regulation. Parliament has provided for legal certainty in what is, without doubt, a morally challenging and humanly complex area.
 Respectfully, this is not, as was suggested in argument, an interpretation of the statute lacking in nuance. It is not a narrow reading. It is a recognition that Parliament has made a policy choice. Parliament has defined the only circumstances in which it is lawful to remove and use reproductive material from a donor. That choice reflects the value Parliament has placed on a donor’s individual autonomy and an individual’s control over his or her body. It has made that choice in the face of numerous deep moral and ethical dilemmas posed by new reproductive technologies.
In that case the first court authorized the sperm to be removed from the man's body and frozen so that the woman's case could proceed on the merits. It is possible that if a similar case arises in the future a judge would not necessarily make the same decision.
The B.C. Court of Appeal decision is not binding on the other provinces, but would certainly be a persuasive case that a judge would consider if faced with a similar dilemma.
The lesson from the case is clear: anyone who wants to give their spouse or common-law partner permission to remove and use sperm/eggs after their death to have a child must do so in writing.
If this is something you wish to do, please let us know and we would be happy to assist you.
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