Mrs. Warren, for her part, has not decided whether she wants to use Mr. Brewer’s sperm to have his baby and is fighting simply for the sperm to remain in storage while she grieves. The HFEA responds that it is bound by the governing legislation and has no discretion to depart from it.
Like many Canadian lawyers, reading international legal news like this often prompts me to ask: “What would happen here?”
In Canada, the regulation of reproductive material is [mostly] in the hands of the federal government through the Assisted Human Reproduction Act, which came into force in 2007. The centrepiece of the AHRA is express written consent. Express written consent can include consent for the donor’s spouse to use the reproductive material to create an embryo after the donor’s death. It can also include consent to remove and use human reproductive material from the donor after the donor has deceased (which is medically possible if done quickly).
Unlike the United Kingdom, written consent does not expire; it persists unless and until it is withdrawn in writing. It is worth noting that separation or divorce effectively voids consent for a spouse to use reproductive material from his or her ex.
As lawyers, we often see clients who have not adequately planned for uncomfortable life events like the financial consequences of death (through wills) or the financial and practical consequences of the breakdown of marriage (through cohabitation or marriage agreements). People are understandably reluctant to contemplate these uncomfortable topics when they are happy and healthy.
The requirements of the AHRA take this level of discomfort to a whole new level. Reasonable people can disagree on the wisdom of bearing the children of a deceased spouse, but it is undeniable that some couples will want to, at the very least, have the option to do so. For these couples, advanced thought and preparation are essential. If a couple wants a surviving spouse to be able to use reproductive material to create an embryo after the death of the other spouse, the necessary legal documents must be prepared and signed well in advance. Starting a family is generally a young person’s game, and if a young person dies there is a decent shot that it will be the result of a traumatic event that makes getting express written consent impossible. This would lead to a sad situation, leaving a surviving spouse with no legal ability to start a family with their deceased spouse’s reproductive material despite knowing that it is what their spouse would have wanted.
Eric Regehr is a family lawyer in Victoria BC. Please contact our Victoria law firm to schedule a 30 minute consultation. (250) 388-9477