Medical and scientific fields have made significant strides in the area of reproductive technology. From In-vitro fertilization (IVF) to storage of genetic material, intended parents have options that did not exist a generation ago. Collectively, these reproductive advancements are known as Assisted Reproductive Technology (“ART”). In response to same, the Canadian Parliament passed the Assisted Human Reproduction Act (“AHRA”) in 2004. However, as ART and the human experience continues to evolve, the AHRA remains static and flawed.

In a 2020 Court of Appeal decision [L.T. v. D.T. Estate 2020 BCCA 328], the claimant applied to the court following the sudden death of her husband for the posthumous retrieval and use of his sperm. Prior to the husband’s death, the couple had discussed the desire to have more children. While the court acknowledged the inherent tragedy of the case, the wife’s request was ultimately denied based on the statutory interpretation of the consent provisions in the AHRA. It remains unclear as to what would satisfy these consent provisions.

There are no prescribed forms on how to carry out the consent regulations of the AHRA legislation nor is there public education on this matter. It is unlikely that a simple gifting and intention clause would be sufficient nor is a will adequate. This is a conundrum for lawyers and medical professionals who are trying to guide their clients/patients in navigating this difficult area.

The L.T. case shows the disconnect between the legal reality and the human reality. The gap between technological and scientific advancements and governing law to support/regulate those developments is a recurring matter. A decade in scientific or tech circles is a relative eternity in terms of development, but the same amount of time is seen as recent history in the legal community. These other industries show little sign of slowing their pace. It is vital to shine a light on this topic and to encourage proactive responses in political, legislative, medical, and legal arenas. Human reproductive law is an intensely personal area of practice, often with extremely time-sensitive constraints. In this area, the legislation can and should do better.