Is it legal to retrieve sperm from a dead man – and use it to have a baby?

Is it legal to retrieve sperm from a dead man – and use it to have a baby? The short answer is exactly what you’d expect from a lawyer: it depends. The long answer, for Canada at least, is that it depends on whether the deceased man put his wishes in writing and who would be using the sperm.

Why would someone want to retrieve sperm from a dead man? For one, his partner may wish to give their existing child a sibling (or to have a child in the first place). Or the man’s parents may want to fulfill their dream of becoming grandparents (arguably a more ethically challenging scenario).

We do in fact have laws that address this very scenario. Canada’s Assisted Human Reproduction Act tells us that it is illegal to remove sperm (or egg, for that matter) from a person’s body after death for the purpose of having a baby UNLESS the deceased had previously given written consent (which, frankly, most people don’t think to do in advance).

The written consent must state that, before signing the consent, the man was informed in writing that (1) the sperm would be removed for the purpose of his spouse or common-law partner having a baby, and (2) if he wants to withdraw his consent (before death, presumably) he must do so in writing.

Notably, there was one case where the man’s wishes were not clearly in writing and yet his spouse was permitted to use his sperm. The situation arose in BC after a man who froze his sperm died. His wife asked the fertility clinic to release the sperm to her so that she could conceive a child, and the clinic, understandably, thought they could not do this because the Assisted Human Reproduction Act requires the consent to be in writing. The wife ended up going to Court (the fertility clinic did not participate, which leads to an inference they were happy to comply with her request provided the Court said it was ok). After hearing the evidence, the judge noted that the man was never informed of the requirement to provide written consent and so he did not have the opportunity to do so. However, the man discussed the possibility of his spouse using his sperm after his death with his social worker, a nurse involved with his care, his family doctor and the clinic. The judge was persuaded that the man would have consented in writing if he had been asked to do so. This case is noteworthy because it demonstrates the flexibility of the Assisted Human Reproduction Act; however, this situation is notably different from one that would require post-humous sperm retrieval.

If there is a lesson in all of this, it is this: if you want your partner to be able to retrieve and use your genetic material after you die for the purpose of having a child, it’s best to put it in writing.

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