Court of Appeal for British Columbia in Vancouver. (File photo: Tom Zytaruk)

Court of Appeal for British Columbia in Vancouver. (File photo: Tom Zytaruk)

B.C. woman loses appeal to have second child by using late husband’s sperm

Assisted Human Reproduction Act prohibits the removal of human reproductive material from a donor without consent

A woman’s second attempt to be granted the legal right to use her late husband’s sperm to have another child has been struck down in B.C.’s Court of Appeal.

The woman, referred to as Ms. T., lost her husband after he died “suddenly and unexpectedly,” according to court documents made public on Wednesday (Nov. 25). The pair had been married for three years and had one child together.

While they had talked about growing their family, they never discussed what would happen if one or the other died – specifically to do with posthumous use of their reproductive material.

On Wednesday, the appeals court was dealt the task of considering how Ms. T’s yearning to give her child a full biological sibling worked within the legal framework of the Assisted Human Reproduction Act. That legislation prohibits the removal of human reproductive material from a donor without the donor’s prior, informed or written consent.

In the initial hearing, in which a judge struck down Ms. T’s request, she argued that many people do not know about this legislation and that while the federal government contemplated rolling out education on this act, they have yet to provide any.

While the appeals judges agreed, they determined the aspects of required consent were clearly stipulated within the law.

Ms. T also argued that reproductive material in some instances has been recognized as property, citing a decision from 2016 involving the Genesis Fertility Clinic. The judges determined that in that instance, the donor – who was suffering from a life-threatening medical condition – had consented for the removal of his reproductive material while he was alive.

Although in that instance the written consent was not complete, there was enough evidence to show overall consent.

In their reasoning, the three appeals judges determined that Mr. T likely would have consented to the posthumous use of his reproductive material if he had considered the issue. However, granting the widow permission to use her husband’s sperm would be contrary to the explicit language found within the act – set to protect the donor’s interest, they ruled.

The appeal was dismissed.

“I do so with regret, aware of the painful and tragic circumstances confronting Ms. T’s family,” Justice Harris wrote in the ruling’s conclusion.

“Given the circumstances, I would stay the order of this court for 60 days to permit the parties to consider their position on an appeal to the Supreme Court of Canada.”

Court

Just Posted

“Think on These Things” is a column written by retired Creston pastor Ian Cotton. (File photo)
Think on These Things: Everyone is Invited

“Tell them there is healing, cleansing for every soul…”

North Okanagan business Hytec Kohler set up a COVID-19 vaccination clinic at the Spallumcheen plant Friday, May 14. (Jennifer Smith - Morning Star)
More than half of eligible adults in Interior Health vaccinated

Over 365,000 vaccine doses have been administered throughout the Interior Health region

Student-nurse Kendra Waterstreet administers the Pfizer vaccine to Litia Fleming at the Waneta Plaza vaccination clinic in the old Zellers buiding. Photo: Jim Bailey
Trail vaccination clinic readies for adults age 40+

B.C.’s state of emergency is extended through the end of day on May 25

Kerry Reed
West Kootenay Fishing Report: Spring fishing, the bite is on!!

Anglers having great results on Kootenay Lake and Columbia River

New Border Bruins owner Dr. Mark Szynkaruk reps team colours with his young sons and wife Tracey. Photo courtesy of the Grand Forks Border Bruins
KIJHL’s Border Bruins sold to Grand Forks doctor

The league announced the sale Friday, May 14

Daily confirmed COVID-19 cases reported to B.C. public health, seven-day rolling average in white, to May 12, 2021. (B.C. Centre for Disease Control)
B.C. preparing ‘Restart 2.0’ from COVID-19 as June approaches

Daily infections fall below 500 Friday, down to 387 in hospital

The warm weather means time for a camping trip, or at least an excursion into nature. How much do you know about camps and camping-related facts? (John Arendt - Summerland Review)
QUIZ: Are you ready to go camping?

How many camp and camping-related questions can you answer?

On Friday, May 14 at Meadow Gardens Golf Club in Pitt Meadows, Michael Caan joined a very elite club of golfers who have shot under 60 (Instagram)
Crowds at English Bay were blasted with a large beam of light from an RCMP Air-1 helicopter on Friday, May 14. THE CANADIAN PRESS/Marc Grandmaison
Police enlist RCMP helicopter to disperse thousands crowded on Vancouver beach

On Friday night, police were witness to ‘several thousand people staying well into the evening’

People shop in Chinatown in Vancouver on Friday, February 5, 2021. THE CANADIAN PRESS/Jonathan Hayward
Vancouver community leaders call for action following 717% rise in anti-Asian hate crimes

‘The alarming rise of anti-Asian hate in Canada and south of the border shows Asians have not been fully accepted in North America,’ says Carol Lee

Sinikka Gay Elliott was reported missing on Salt Spring Island on Wednesday, May 12. (Courtesty Salt Spring RCMP)
Body of UBC professor found on Salt Spring Island, no foul play suspected

Sinikka Elliott taught sociology at the university

The first Black judge named to the BC Supreme Court, Selwyn Romilly, was handcuffed at 9:15 a.m. May 14 while walking along the seawall. (YouTube/Screen grab)
Police apologize after wrongly arresting B.C.’s first Black Supreme Court Justice

At 81 years old, the retired judge was handcuffed in public while out for a walk Friday morning

Dr. Steve Beerman, of Nanaimo, shows off his Dr. David Bishop Gold Medal, awarded for distinguished medical service. (Karl Yu/News Bulletin)
Queen presents Vancouver Island doctor with award for global drowning prevention

Dr. Steve Beerman receives Royal Life Saving Society’s King Edward VII Cup at virtual ceremony

Tim Miller is selling his 76-foot steel bridge from his property in Burton, B.C. The bridge originates from the railway in Revelstoke. (Contributed)
For sale: a 100-ton 19th century bridge by Arrow Lakes

Bridge is in Burton, B.C. and advertised for $40,000

Most Read