Assisted Human Reproduction or Assisted Reproductive Technology (“ART”) sounds like the inspiration for a dystopian novel or a Netflix Series. Historically the human body, its parts and products, have not been considered property in law. Each of us has always assumed that such things were personal and would be used with our consent based on our personal decision making as we lived our lives. There was, in addition, the scientific inability to make use of such material. The world’s first test tube baby, Louise Joy Brown, was not born until 1978 in England.
The first and only Canadian legislation dealing with ART was the Assisted Human Reproduction Act (“AHRA”) proclaimed in 2004. One of its objects was the principle of free and informed consent as a fundamental condition of the use of ART. It, therefore, prohibited the use of human reproductive material for the purposes of creating an embryo unless the donor had given their written consent. This prohibition is premised on the legal conclusion that there is some form of property in the material and that it belongs to the individual from whom it came. What then if the donor is unable to provide that necessary written consent?
A Recent Case dealing with Assisted Human Reproduction
The British Columbia Supreme Court (“BCSC”) in KLW v. Genesis (“GFS”) had to deal with an application brought by the wife of a deceased man, seeking to have it declared that she was the owner of his preserved sperm and to use the same to attempt to have a child. GFS resisted her request to voluntarily provide the sperm on the basis that there was no written consent from the deceased as required by s.8 (1) of the AHRA and its Regulations. The application, however, was unopposed by GFS.
The applicant and the deceased had always intended to have children. Unfortunately, he was ill throughout their marriage and conception had never occurred. The applicant had promised her late husband that she would attempt to conceive with his preserved sperm should he pass away. He died intestate without providing his written consent. The applicant claimed that the property in his sperm passed to her through his estate as his sole beneficiary based on s. 20 of British Columbia Wills Estates and Succession Act.
The BCSC had to decide if the reproductive material was, in fact, legal property, and if so, did it pass to the applicant by succession, and finally, could it order that the material be released to the Applicant despite the lack of written consent.
Is the Reproductive Material Property?
The court concluded that the sperm was indeed property belonging to the deceased. It did so by reviewing cases dealing with the incidents of the use and ownership of sperm in both British Columbia and other common law jurisdictions. The court recognized that the common law had not historically allowed for any property rights in the human body or its products. However, it accepted that developments in science now called for a re-examination of that position. Where, as here, the parties had treated the sperm as property, this was a good indication that it was property. Further, not all incidents of ownership need to be present for ownership to arise. Ownership of body parts is contextual and often limited, as here, by legislation in the public interest. The prohibition on the sale of body parts does not mean they are not property.
Did the Property in the Reproductive Material pass to the Applicant?
The sperm was the personal property of the deceased. It had been stored for a fee paid by both the deceased and the Applicant. GFS would not destroy it without the written permission of the Applicant. The only claimant was the Applicant. The deceased had provided the sample for the purposes of conception even after his death. Accordingly, the property in his sperm passed to the Applicant on his death.
May the Court Order a Release Despite the lack of Written Consent?
The court concluded it could as it found that the deceased had, in the circumstances of the case, consented sufficiently to satisfy the fundamental objective of the AHRA in that it was proven, free, and informed consent.
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