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Canadian court denies woman's appeal to use dead husband's sperm

30 November 2020
Appeared in BioNews 1074

A woman in Canada has been denied her appeal to use her dead husband's sperm, on the grounds that he did not provide formal written consent. 

The couple, referred to as Mr and Ms T by the court, had been married for three years and had one child before the husband's sudden death in October 2018. The widow was hoping to preserve her husband's sperm from the dead body and have another child. However, Mr T did not leave any informed, written consent for his genetic material to be used after his death. Therefore, the widow's wish to use the sperm for reproductive purposes was ruled illegal by the Supreme Court of British Columbia in Canada.

'Our policy makers require an individual to formalise their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material. Regrettably, that is not the case here,' said Justice David Masuhara.

Ms T contacted a fertility centre shortly after her husband's death but needed a court order in the next 36 hours to keep the sperm. Justice Masuhara allowed the preservation of the genetic material in an urgent after-hours application to the court. In December 2019, however, Justice Masuhara ordered the sperm to be destroyed although Mr T's closest relatives testified that he had wanted more children.

The widow appealed in court but in November 2020 Justice David Harris ruled that the sperm could not be used. Justice Harris said: 'I do so with regret, aware of the painful and tragic circumstances confronting Ms T's family. I cannot agree that the prohibition is only intended to apply in the case of a foreseeable death and not an unanticipated one where a couple are planning to have children together. To read the statute in that way would be to amend it by judicial decree. We have no right to do so.'

The widow has an option for a further appeal to the Supreme Court of Canada. Laws in many countries including Canada, France and Sweden ban the removal of reproductive material posthumously unless a prior written informed consent is available. 

Court in Canada rules against widow seeking to have a child using sperm from dead husband
Independent |  25 November 2020
Dead man’s sperm off limits: court
Tricity News |  24 November 2020
7 September 2020 - by Georgia Everett 
A Scottish mother is taking legal action to prevent her deceased child's sperm from being destroyed by a fertility clinic...
27 April 2020 - by Suzi Denton 
A fertility clinic has been ordered to disclose records pertaining to the use of a dead patient's sperm to the personal representative of the patient's estate...
27 January 2020 - by Alegria Vaz Mouyal 
Men should be permitted to donate their sperm after death in the same way they can donate organs, according to a new paper in the Journal of Medical Ethics...
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