L.T. v. D.T. Estate (Re)

2019 BCSC 2130 L.T. v. D.T. Estate (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.T. v. D.T. Estate (Re), 2019 BCSC 2130 Date: 20191209 Docket: S1810682 Registry: Vancouver Between: L.T. Petitioner And: The Estate of D.T. Respondent Before: The Honourable Mr. Justice D.M. Masuhara Reasons for Judgment Counsel for the Petitioner: Jasmeet K. Wahid Counsel for the Attorney General of British Columbia: J. Alexander Dutton Place and Date of Hearing: Vancouver, B.C. October 3, 2018 October 7, 2019 Place and Date of Judgment: Vancouver, B.C. December 9, 2019 Introduction [1] On October 3, 2018, an urgent after-hours application was brought before me seeking the following orders: (a) The human reproductive material of D.T. shall be removed from his body after his death; (b) The human reproductive material removed from D.T. shall be stored at an IVF Clinic chose by the petitioner, L.T.; and (c) D.T.'s human reproductive material shall be used to create embryo(s) for the reproductive use by the petitioner, L.T., and for no other or improper purpose. [2] The urgency for the after hours application was because D.T. ("Mr. T") had died suddenly and unexpectedly on October 2, 2018. The petitioner L.T. ("Ms. T"), Mr. T's wife, contacted a fertility centre on October 3, 2018 about retrieving Mr. T's sperm for future reproductive use and was informed that a retrieval of this kind should occur within 36 hours of death and

that a court order was required. [3] At the hearing of the after-hours application, counsel for Ms. T had limited submissions on how the application was impacted by the provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the "AHRA") and its regulations the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the "Regulations"). Section 8(2) of the AHRA provides: Posthumous use without consent (2) 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, in accordance with the regulations, to its removal for that purpose. [4] Sections 6, 7 and 8 of the Regulations provides: Consent Given Under Subsection 8(2) of the Act 6 This Part applies in respect of a consent given under subsection 8(2) of the Act to remove human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo. 7 Before a person removes human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo, the person shall have a document signed by the donor stating that, before consenting to the removal, the donor was informed in writing that (a) the human reproductive material will be removed in accordance with the donor's consent to create an embryo for one

or more of the following purposes, namely, (i) the reproductive use of the person who is, at the time of the donor's death, the donor's spouse or common-law partner, (ii) improving assisted reproduction procedures, or (iii) providing instruction in assisted reproduction procedures; (b) if the donor wishes to withdraw their consent, the withdrawal must be in writing; (c) the withdrawal is effective only if the person who intends to remove the human reproductive material is notified in writing of the withdrawal before the removal of the material; and (d) human reproductive material removed from the donor cannot be used for a purpose mentioned in paragraph (a) unless the person who intends to make use of the material has the donor's written consent under Part 1 respecting the use of the material. 8 Before a person removes human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo, the person shall have the donor's written consent respecting the removal of the material and the donor's written consent under Part 1 respecting the use of the material. [5] Mr. T had not provided written consent to the posthumous removal of his reproductive material for the purpose of creating an embryo. [6] Recognizing that this was a last minute urgent application and that a denial would be terminal, I determined that an order maintaining the status

quo was required to allow for the applicant to provide full submissions on the operation of the AHRA and regulations in a full hearing. I authorized the removal of Mr. T's reproductive material by a qualified physician; ordered that the material be stored at the identified fertility centre; and ordered that such material could not be released, distributed, or used until further order of the Court. I ordered a further hearing to address the key question of the effect of the AHRA and the Regulations on the application. [7] I also requested counsel to contact the Federal Department of Justice and the provincial Ministry of the Attorney General on behalf of the Court inviting them to provide submissions at the future hearing. [8] Pursuant to these orders, a hearing of the issue of whether Mr. T's reproductive material may be used by Ms. T to create an embryo took place on October 7, 2019. [9] The Department of Justice declined the invitation but was present during the hearing as an observer. The Attorney General of British Columbia appeared and provided submissions for which I am appreciative as am I of those from petitioner's counsel. Materials Submitted by the Petitioner [10] Ms. T and Mr. T had been in a long-term relationship, and had been married for three years. The couple had very recently become parents. [11] Mr. T died suddenly and unexpectedly. He also died

intestate. [12] In support of the application to remove and use his reproductive material, 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. [13] Mr. T's passing has been deeply felt by all those who knew him. [14] There is no question of the bona fides of the affiants in respect to their comments regarding Mr. T and his desire for more children. There is no question as to the bona fides of Ms. T. Her wishes are natural and understandable. [15] There is no question that he looked forward to parenting and having more children and for his daughter to have siblings. It is acknowledged however, that neither Mr. T nor Ms. T had considered the posthumous use of reproductive material. My view is that like most other young couples, they had not put their minds to that circumstance. The comments attributed to Mr. T as to his desire for a larger family, and siblings for his child, it is fair to say, were in the context of him being an active participant. [16] It is clear that Mr. T did not provide for the posthumous use of his reproductive material in accordance with the plain statutory language of the AHRA and Regulations. Discussion [17] In this application, Ms. T does not raise a constitutional challenge to any provisions of the AHRA, or its

regulations. [18] The Supreme Court of Canada has previously upheld the constitutional validity of s. 8 of the AHRA. In Reference Re: Assisted Human Reproductive Act, 2010 SCC 61, the Supreme Court of Canada identified that the purpose of section 8 -- and its prohibition against the use of a donor's reproductive material for the purpose of creating an embryo in the absence of the donor's written consent -- relates to the fundamental importance ascribed to human autonomy and is a constitutionally valid exercise of Parliament's criminal law power. [19] I also note section 2(d) of the AHRA where Parliament declares: the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies. [20] The issue before me then, is one of statutory interpretation. Specifically, does the language of section 8(2) prevent Ms. T from using Mr. T's reproductive material to create an embryo? Or, as the petitioner submits, do principles of statutory interpretation permit the court to read the act in such a way as to allow Ms. T to use Mr. T's reproductive material to create an embryo? [21] With references to principles of statutory interpretation, the petitioner argues that the relevant provisions of the AHRA must be read in light of the common law of implied consent and other pieces of provincial legislation that allow for

implied and substituted consent in the context of medical procedures and incapacitated adults. [22] The petitioner also relies upon the principle of statutory interpretation relating to legislative gaps, which holds that in rare circumstances (i.e. legislative absurdity or under-inclusion) the courts may be called on to address situations unanticipated by the legislature at the time of enactment. The petitioner submits that such a legislative gap exists in the AHRA in relation to obtaining consent from donor's that have unexpectedly and suddenly passed away. I will address each of the petitioner's submissions. [23] To guide this analysis, I note that the starting point for statutory interpretation is the often quoted Driedger's modern principle: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Elmer Driedger, Construction of Statutes (2nd ed. 1983), p. 87]. [24] In the alternative, the petitioner submits that Mr. T's reproductive material constitutes property over which Ms. T may assert a right over as his surviving spouse. I will address these submissions in full below. Statutory Interpretation (a) The common law of implied consent and provincial legislation [25] The

petitioner submits that I should adopt a broad-based common-law and statutory understanding of the term "consent," when interpreting section 8 of the AHRA. In this regard, the petitioner relies upon the current absence of a definition of the term "consent" under the AHRA - which was repealed in 2012 - and provincial statutes which provide for inferred or substituted consent where an individual is incapacitated. The petitioner submits that in the current absence of a definition of "consent" under the AHRA, the Court should turn to common law conceptions of consent. The petitioner argues that under the common law, consent is a complex and adaptive concept, which may be express or implied, written or oral, and may even, under certain circumstances, be conveyed by a third party. [26] As discussed by Professor Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014) [Construction of Statutes], "the common law forms an important and complex part of the context in which legislation is enacted and operates and which it must be interpreted in": p.

555. However, legislation remains paramount over the common law and it is open to Parliament to abrogate and modify the common law. I cannot, as the petitioner asks me to do, rely upon the common law where it directly contradicts, or is qualified by, the clear and unequivocal legislative language before me. The language of section 8 of the AHRA does not simply require "consent" from a deceased donor without providing any further direction to the courts. The language of section 8 unequivocally requires "written consent." [27] Moreover, the consent requires that it be informed. The regulations specify the type of informed consent that is required from a donor if the donor's reproductive material is to be removed after the donor's death for the purposes of creating an embryo. The donor must have signed a document stating that, prior to providing their consent (which must also be written), they were informed in writing that (a) their reproductive material would be posthumously removed and (b) their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner: see s. 7(d), s. 8, Regulations above. [28] The petitioner also directs me to several provincial statutes to support the position that where an individual is incapacitated, the individual's consent may be inferred from their conduct, or otherwise provided by a

family member taking into account their wishes and best interests. In particular, the petitioner directs me to key consent provisions of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C 1996, c. 181, which provides a scheme for obtaining an individual's consent in the context of receiving medical treatment: How consent is given and scope of consent 9(1) Consent to health care may be expressed orally or in writing or may be inferred from conduct. Duties of a temporary substitute decision maker 19(1) A person chosen under section 16 to give or refuse substitute consent to health care for an adult must (a) before giving or refusing substitute consent, consult, to the greatest extent possible, (i) with the adult, and (ii) if the person chosen under section 16 is a person authorized by the Public Guardian and Trustee, with any near relative or close friend of the adult who asks to assist, and (b) comply with any instructions or wishes the adult expressed while he or she was capable. (2) If the adult's instructions or wishes are not known, the person chosen under section 16 must decide to give or refuse consent in the adult's best interests. (3) When deciding whether it is in the adult's best interests to give, refuse or revoke substitute consent, the person chosen under section 16 must consider (a) the adult's current wishes, and known beliefs and values, (b)

whether the adult's condition or well-being is likely to be improved by the proposed health care, (c) whether the adult's condition or well-being is likely to improve without the proposed health care, (d) whether the benefit the adult is expected to obtain from the proposed health care is greater than the risk of harm, and (e) whether a less restrictive or less intrusive form of health care would be as beneficial as the proposed health care. [29] However, the provincial legislation regarding consent to medical treatment by another authorized person for an adult while alive governs a different subject matter than in the present case. Moreover, the provincial legislation relied upon expressly provides that consent may be provided orally, in writing, or obtained through inference from conduct. This does not assist me in interpreting the federal legislation before me that expressly limits the requisite consent to "written consent" only. [30] In Construction of Statutes, Sullivan provides that courts will generally consider any statutes dealing with the same subject matter as the statute to be interpreted: p.

416. The purpose behind this principle of statutory interpretation is to ensure "coherence and consistency between rules dealing with the same thing:" p.

416. In my view, applying the clear and unequivocal language of section 8 (2) which requires "written consent" in circumstances where a spouse or common-law partner seeks to retrieve reproductive material from a deceased donor spouse while also recognizing that provincial legislation allows for multiple forms of consent in the context of medical treatment, poses no threat to the principle of internal coherency. [31] Finally, the petitioner draws my attention to K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621 [K.L.W.]. In K.L.W., this Court did find that the deceased donor had requisitely consented to the reproductive use of his stored reproductive material, despite not having provided the "written consent" as required under section 8 of the AHRA. However, that case can be distinguished. [32] In K.L.W., the removal of the deceased donor's reproductive material occurred during his lifetime, with his consent. In fact, "the sole purpose for extracting and storing the sperm was to preserve it for later use by [A.B.] and the petitioner to attempt to conceive a child:" para.

94. Additionally, as regards to the unique nature of the fact scenario in K.L.W. this Court stated: [131] The circumstances of this case are extraordinary. [A.B.] freely and repeatedly expressed his consent to the petitioner's use, following his death, of the Reproductive Material. He communicated his agreement to the petitioner's use of his stored sperm to the petitioner, to his social worker, to a nurse at the [content redacted] hospital where his [content redacted] was performed, to his family doctor, and to Genesis. [136] I conclude that in the circumstances of this case, [A.B.]'s consent, although not in writing, specifically contemplated the petitioner's reproductive use of his stored sperm after his death, and was sufficient to satisfy the fundamental objective of the AHRA that the donor's consent must be both free and informed. Accordingly, the Court may order the release of the Reproductive Material to the petitioner to enable her use of that material for the purpose of creating an embryo. [33] Unlike K.L.W., in the present case there was no prior discussion of the use of Mr. T's sperm posthumously nor prior informed consent by the deceased for the removal of his sperm. In the present case, the removal was pursuant to a posthumous interim order of the court to allow for fuller submissions at a later hearing. I do not find similar "extraordinary" circumstances in the

case at bar. [34] I also note that the court in K.L.W. the court did not have the benefit of a full argument as only the petitioner appeared and the petition was unopposed. (b) The legislative gap [35] I now turn to the petitioner's submissions based on principles of statutory interpretation and the notion of a legislative gap. The petitioner submits that the provisions of the AHRA do not contemplate, or provide for, the type and form of "consent" that should be required of a donor to permit the posthumous retrieval of their reproductive material for the purpose of creating an embryo, where: (a) the donor has clearly indicated through their words and actions, while living, their desire to have children with their spouse or common-law partner; (b) the donor's spouse seeks to retrieve the deceased donor's reproductive material for the sole purpose of creating an embryo (c) the donor has died in sudden and unexpected circumstances, and (d) the donor did not provide the written consent as required under section 8(2) to the posthumous retrieval of their reproductive material. [36] The petitioner submits that because of this asserted legislative gap, the court may fill the gap by a logical inference based on the whole of the legislation. [37] As discussed by Sullivan in Construction of Statutes, a legislative gap presents itself when legislation "fails to apply to circumstances which

need to be covered or to address a matter that must be dealt with to achieve the intended goals:" p. 381. [38] As I read it though, section 8(2), covers all posthumous removals of a donor's reproductive material after death. The petitioner is not, in effect, asking me to find that the AHRA is under-inclusive. Instead, I am being asked to write into the statute an exception to the express language of the legislature. [39] While in rare and limited circumstances the courts may address and "provide a solution for situations unanticipated by the legislature at the time of enactment and therefore not dealt with expressly in the text" (Sullivan, p. 387), the wording of section 8(2) explicitly requires written consent from a donor. There is nothing that indicates that the absence of a provision providing an exception in Mr. T's specific circumstances -- i.e. where death is sudden and unexpected -- is a legislative oversight. There is also nothing to indicate that inserting such an exception into the statute is necessary to achieve the legislature's purpose or goals, or that it is a logical inference based on the whole of the legislation. [40] My view of the legislative purpose of the AHRA is informed by the principles set out at the very beginning of the statute. These principles are framed as direct "declaration[s]" of the Parliament of Canada. Of particular relevance to these

proceedings, section 2(d) provides that "the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies." [41] In Reference Re: Assisted Human Reproductive Act, the Supreme Court of Canada dealt specifically with the legislature's intent behind section 8 of the AHRA. Chief Justice McLachlin (as she then was), concluded that "at the heart of s. 8 lies the fundamental importance that we ascribe to human autonomy:" para. 90. [42] The Supreme Court of Canada also referred to the Baird Report in discerning the general purposes of the AHRA and identifying why certain prohibitions were made: para.

111. The Baird Report was written by the Royal Commission on New Reproductive Technologies, a commission struck by the federal government to inquire into the existing situation and foreseeable scientific and medical advances in the area of new reproductive technologies: Reference Re: Assisted Human Reproductive Act, para.

160. The Baird Report was tabled in 1993 and "impelled parliament" to draft the AHRA: Reference Re: Assisted Human Reproductive Act, para. 29. [43] At page 582 of the Baird Report, under the heading "Examination of Conditions, Technologies and Practices," the Commission identified numerous "ethical and legal dilemmas" raised by cryopreservation techniques (i.e. the freezing of reproductive material). The Commissioners discussed issues raised by the cryopreservation of a couple's zygotes, and what should happen to the zygotes in the event of one of the partner's deaths. [44] In considering the moral and legal issues surrounding the posthumous use of cryopreserved "zygotes," the Commissioners contemplated circumstances where a couple had already begun an IVF process and created a frozen fertilized egg(s) through use of each of the partner's retrieved gametes ), to be potentially implanted into a female partner's uterus. I note that the Report specifically dealt with the scenario of a cis-gendered heterosexual couple. In this context, the Report stated at pp. 598-99: Another issue is whether storage [of the zygote] should be permitted after the death of one partner. The wish to transfer a stored zygote after the death of a partner may be understandable. It is relevant, though, that for all other couples pregnancy is not an option when one partner has died The potential

complexities, consequences, and ramifications are unclear. Given this, it seems to Commissioners necessary to have some limits, and the death of either partner is a clear and practical limit The Commission therefore recommends that [z]ygotes not be stored beyond the death of one of the gamete donors. [45] While the case at bar is dealing with the posthumous removal and reproductive use of Mr. T's sperm, and not of a zygote, the recommendation made by the Commissioners in relation to the posthumous use of zygotes is useful for our purposes. Namely, even where a partner has already consented to the retrieval and fertilization of their genetic material while alive -- thus indicating, a strong desire to have children with their partner -- the Report concluded that it was a reasonable limit to prohibit the use of zygotes after a partner's death. I note here that the drafters of the subject provision decided not to introduce a blanket prohibition on the use of a donor's reproductive material after death. Instead, the drafters of the subject provision imposed their own "clear and practical limit" -- requiring a donor's written consent to the posthumous use of their reproductive material. Given the broad policy considerations before the policy makers, I must respect that legislative choice. [46] To accept the petitioner's legislative gap argument that the legislature did not turn its

mind to posthumous consent in the circumstances of Mr. T (i.e. sudden death where the deceased had not turned his mind to consenting to the posthumous removal of reproductive material in order to have children), I would have to accept that in drafting section 8(2) the legislature was instead turning its mind to the situation of spouses and common-law partners who desired to have children and who contemplated or anticipated one of the partner's death (i.e. where death was not sudden and unexpected). Specifically, I would need to find that the legislature sought to prohibit the posthumous removal and use of these persons' reproductive material in the absence of written consent and not in the circumstances of Mr. T. [47] I find it extremely unlikely that the legislature only considered the need for posthumous consent for persons who desired to have children and who contemplated or anticipated their death, as opposed to persons where death is sudden, when the vast majority of spouses and common-law partners who are at a stage in their life where they are desiring to have children would be at an age where a partner's death would more commonly be unexpected. [48] In other words, I would need to accept that section 8(2) and its prohibition against the posthumous removal and use of reproductive material in the absence of written consent was only intended to prohibit the posthumous

removal and use of reproductive material for a very narrow segment of society, and in the absence of any clarifying language to this effect. [49] I am not persuaded that the legislature intended such a narrow application. It is not consistent with the clear and unequivocal language of the provision, the level of detail provided in the provisions (i.e. the content and type of consent required) or the breadth of assisted reproductive issues canvassed by both the AHRA and the Baird Report. [50] I am not persuaded in these circumstances that it would be appropriate for the court to effectively amend the clear language and intent of the legislature. Legislation is presumed to be accurate and well-drafted. As stated by the Supreme Court of Canada in R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.), "the best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what it says, when this can be clearly ascertained:" para. 11. [51] The petitioner also submits that where a legislative gap exists, this court has recourse to its inherent parens patriae jurisdiction to make an order that is in the best interests of the affected individuals. Having found no such legislative gap under section 8 of the AHRA, it is not necessary to address these arguments. However, I will briefly address these submissions. [52]

The petitioner submits that the Court's parens patriae jurisdiction, which allows it to make decisions in the best interests of mentally and physically incapacitated adults, may be used by the Court to reach a decision that is in the best interest of Mr. T. However, as seen in the cases supplied by the petitioner, the Court's parens patriae jurisdiction is exercised to protect children, and physically and mentally dependant adults -- who are living: Temoin v. Martin, 2011 BCSC 1727. I was provided with no case authority to suggest that parens patriae jurisdiction is available to make decisions in the best interests of the deceased. (c) Reproductive Material as Property [53] In terms of the alternative argument that the sperm removed and stored is property vested in the applicant, I do not accept this. [54] While this Court in K.L.W., considered reproductive material to be "property" capably of passing on intestacy to the donor's beneficiary, there are several distinctions between that case and the instant. [55] As discussed, in K.L.W., the reproductive material had already been extracted by the donor, prior to his death, and was stored in facility specifically for the later reproductive use of his spouse. At para. 94 of the decision, Pearlman J. states: While [A.B.] was alive, Genesis stored the frozen sperm on his behalf and treated it as [A.B.]'s property. Only [A.B.] could

consent to the use of the stored sperm for reproductive purposes permitted under the AHRA. [56] That is not the case here. The issue of a property interest in this case arises as a result of my order of October 3, 2018 permitting the posthumous removal and storage of Mr. T's reproductive material pending fuller and more complete argument on why section 8 (2) of the AHRA did not apply. This is not sufficient to ground a property interest. [57] The same distinction applies to the case of Lam v. University of British Columbia, 2015 BCCA 2 [Lam] reviewed in K.L.W. While, the British Columbia Court of Appeal in Lam found a series of donors' reproductive material to be "property," this was in the context of a class action where stored sperm was damaged or destroyed by a storage firm and which finding was limited to the Warehouse Receipt Act, R.S.B.C. 1996, c.

481. The sperm had been provided for storage from donors who were alive and contracted to store the material; paid a storage fee; and consented to testing of the material: para. 76. [58] Finally, in K.L.W. the court also reviewed the New South Wales decision of Jocelyn Edwards; Re the Estate of the late Mark Edwards, [2011] NSWSC 478 [Jocelyn], in which the court found that the posthumous retrieval of reproductive material pursuant to a lawful court order, involved the application of work and skill and resulted in the material's classification as "property" to which a spouse could be entitled to possession. However, in that case the court was not asked to recognize any property entitlement in the stored material beyond the applicant's entitlement to possession of the material. [59] In Jocelyn, the court in finding rights of possession, and not an entitlement to free use of the material, specifically noted that assisted reproductive treatment legislation of that State prohibited fertility clinics from providing treatment to a woman using reproductive material from a deceased donor, unless the deceased donor had specifically consented to the posthumous use of their material. Further, in K.L.W. this Court, in finding a property interest, and not a right of possession, in reproductive material distinguished Jocelyn from the facts in K.L.W. "in so far as that case involved a claim

by a spouse to possession of sperm posthumously extracted from her deceased husband:" para. 83. [60] Under the circumstances in the case at bar, the posthumous order authorizing removal and storage for the specific purpose of permitting submissions in this case cannot be seen as providing a property interest for the petitioner. The reproductive material was held under the supervision of the court (my order) and did not vest a property interest to anyone. Conclusion [61] 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. Regrettably, that is not the case here. [62] Given the foregoing, unfortunately I must dismiss the petition. [63] The order authorizing the removal and storage of the sperm of Mr. T is terminated. [64] The order arising from this decision will be stayed for thirty days to permit the applicant to file an appeal if so desired. "The Honourable Mr. Justice Masuhara"