B.C. woman loses fight to preserve sperm taken from dead husband

In the hours after D.T.'s death, his wife made a desperate plea to a judge.

Her husband had died unexpectedly and without a will. The couple had only recently become parents. And while it was still possible, she wanted the court to approve the removal of D.T.'s sperm in the hopes their daughter could have a sibling.

The judge gave the order.

But the legal implications of giving one Canadian rights to another's reproductive material were unclear. And so D.T.'s sperm has sat frozen since October 2018.

This week, B.C. Supreme Court Justice David Masuhara delivered a ruling he appeared reluctant to give.

"Unfortunately I must dismiss the petition," he wrote.

"The order authorizing the removal and storage of the sperm of Mr. T is terminated."

What happens to sperm after death?

Even as he gave his decision, Masuhara put a 30-day halt on the order to destroy the sperm in order to give D.T.'s widow — L.T. — a chance to appeal. Their names have not been made public. 

The 12-page ruling delves into the legislation surrounding reproductive rights and legislation specifically written to take into account the complexities of reproductive technology.

L.T. claimed the law overlooked her specific situation: the widow of a young man who would have wanted her to have his sperm, but who died without making his wishes known in writing.

And if that argument wouldn't fly, she claimed she should have property rights over her late husband's sperm.

The couple had been in a long-term relationship and had been married three years. D.T. died suddenly.

"Evidence was provided from various persons close to Mr. T indicating that he wished to have more children, that his child have siblings, and that Mr. T experienced great joy in being a parent," Masuhara wrote.

"There is no question that he looked forward to parenting and having more children and for his daughter to have siblings."

But the judge said neither D.T. nor L.T. considered what should happen to their reproductive material if they died.

"Like most other young couples, they had not put their minds to that circumstance," Masuhara wrote.

But Parliament had. The Assisted Human Reproduction Act says "no person shall remove human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo unless the donor of the material has given written consent."

The law was written in the wake of a royal commission report which, Masuhara said, identified numerous "ethical and legal dilemmas" raised by the ability of modern science and technology to preserve reproductive material long after the humans who produce it turn to dust.

"The potential complexities, consequences and ramifications are unclear," the report said.

"Given this, it seems to [the] commissioners necessary to have some limits, and the death of either partner is a clear and practical limit."

The judge said he found it unlikely lawmakers would have made a provision for written consent to posthumous removal of sperm without considering that death would be unexpected for most people "who are at a stage in their life where they are desiring to have children."

The judge compared D.T. and L.T.'s situation to another case in which a B.C. man failed to give written consent for the posthumous use of his sperm but clearly communicated his wishes to a social worker, a nurse and his wife.

In that case the man had also consented to the donation and storage of his sperm before he died, and his wife successfully argued that she should be able to access the sperm.

"In the present case, the removal was pursuant to a posthumous interim order of the court," Masuhara wrote.

And D.T.'s wishes were never made clear.

'That is not the case here'

Failing to successfully challenge the law, L.T. essentially argued that the sperm was her property.

But the judge also rejected that claim, pointing out that he had only ordered the sperm preserved so that it could still be used if L.T. won her legal argument.

And that didn't make it anyone's property.

"Under present legislative circumstances, our policy makers require an individual to formalize their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material," Masuhara concluded.

"Regrettably, that is not the case here"

L.T.'s lawyer has not indicated whether she intends to appeal.