B.C. woman can't use dead husband's sperm for new baby, judge rules
Credit to Author: Keith Fraser| Date: Wed, 11 Dec 2019 23:39:21 +0000
A B.C. woman has lost her bid to use sperm extracted from her dead husband in order to create an embryo for a child to be born.
On Oct. 3, 2018, the woman, who is not identified in a court ruling in the case, appeared before B.C. Supreme Court Justice David Masuhara for an emergency order that would allow sperm from her dead husband to be preserved.
Her husband, who is also not identified in the ruling, had died suddenly and unexpectedly the day before and when his wife inquired about whether she could retrieve his sperm, she was told that retrieval would be possible only within 36 hours of death and following an order by a judge.
Prior to his death, the husband had not given written approval for the use of his sperm in the event of his death, a requirement under the law.
The couple, who had been married for about three years, had just recently become parents, their first child being a daughter.
Justice Masuhara authorized the removal of the reproductive material from the deceased husband by a qualified physician and that it be stored at a fertility centre.
He also ordered that a full hearing on whether or not the wife should be permitted to actually use her husband’s sperm to create an embryo and have another child be dealt with at a later date.
At the hearing, the wife noted that despite the fact that her husband had not given written consent, he had expressed a wish to have other children and had experienced great joy in being a parent.
In his ruling on the case, the judge said that the husband’s passing had been “deeply felt” by all of those who knew him and there was no question that the husband sincerely wanted to have more children.
But he noted that neither had the couple considered the posthumous use of reproductive material.
“My view is that like most other young couples, they had not put their minds to that circumstance. The comments attributed to (the husband) as to his desire for a larger family, and siblings for his child, were in the context of him being an active participant.”
The wife raised several arguments including that there was a “legislative gap” in the law surrounding the use of reproductive material and asked the court to make an exception for her and allow her to use the sperm.
But the judge, noting that the law specifically requires written and informed consent before allowing such a procedure, said that to agree to her request would be going against the intent of the legislation.
“Under present legislative circumstances, our policymakers require an individual to formalize their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material,” said the judge.
“Regrettably, that is not the case here. Given the foregoing, unfortunately I must dismiss the petition. The order authorizing the removal and storage of the sperm of (the husband) is terminated.”
The judge said his decision would be stayed for 30 days to allow the wife to appeal if she wishes to do so.
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