Before he died, the wife promised her husband that she would use his frozen sperm to get pregnant with his baby. (Photo: iStock)
A recent decision made by the Supreme Court of British Columbia sheds light on what happens when a couple, who want to conceive even after the husband’s death, aren’t informed about written consent requirements.
K.L.W., the wife, and A.B., the husband, started a relationship knowing the husband was sick from infancy. Due to his continued illness, they decided to store his sperm with a clinic, as both wanted to have a family. The extraction procedure was done in 2009.
Not long after the husband had the procedure he had to be hospitalized due to complications with his pain medication. His health kept deteriorating and in 2011 he suffered fatal multi-organ failure.
Before he died, the wife promised her husband that she would use his frozen sperm to get pregnant with his baby.
However, when she went to get impregnated, the clinic told her they couldn’t release the sperm to her, because her husband had left no written consent for her to use it.
She then went to court to get permission to use her dead husband’s sperm, because Canadian law says that a person cannot use someone else’s sperm or egg to have a child without written permission from the person who gave the material.
The clinic had not informed the couple of this requirement during their clinic consultations, and the judge noted that was a problem:
“Unfortunately, [A.B.] was never informed of the requirement for his written consent to the petitioner’s use of the Reproductive Material. As a consequence, he died without having the opportunity to provide that consent in writing.”
The saving grace for the wife in this case was that her husband had repeatedly told his social worker, a nurse at the hospital, his family doctor and the fertility clinic that he wanted to have a child with his wife.
The judge took this as sufficient proof that the husband did give his consent for his wife to use his sperm to conceive.
“To deny the petitioner the use of the Reproductive Material intended by [A.B.] would be both unfair and an affront to her dignity,” the court concluded.
The court declared that the sperm was the property of the wife and that the clinic was to release it to her.