Assisted Human Reproduction or Assisted Reproductive Technology ("ART") sounds like the inspiration for a dystopian novel or a Netflix Series. Historically the human body, its parts and products, have not been considered property in law. Each of us has always assumed that such things were personal and would be used with our consent based on our personal decision making as we lived our lives. There was, in addition, the scientific inability to make use of such material. The world's first test tube baby, Louise Joy Brown, was not born until 1978 in England.
The first and only Canadian legislation dealing with ART was the Assisted Human Reproduction Act ("AHRA") proclaimed in 2004. One of its objects was the principle of free and informed consent as a fundamental condition of the use of ART. It, therefore, prohibited the use of human reproductive material for the purposes of creating an embryo unless the donor had given their written consent. This prohibition is premised on the legal conclusion that there is some form of property in the material and that it belongs to the individual from whom it came. What then if the donor is unable to provide that necessary written consent?
The British Columbia Supreme Court ("BCSC") in KLW v. Genesis ("GFS") had to deal with an application brought by the wife of a deceased man, seeking to have it declared that she was the owner of his preserved sperm and to use the same to attempt to have a child. GFS resisted her request to voluntarily provide the sperm on the basis that there was no written consent from the deceased as required by s.8 (1) of the AHRA and its Regulations. The application, however, was unopposed by GFS.
The applicant and the deceased had always intended to have children. Unfortunately, he was ill throughout their marriage and conception had never occurred. The applicant had promised her late husband that she would attempt to conceive with his preserved sperm should he pass away. He died intestate without providing his written consent. The applicant claimed that the property in his sperm passed to her through his estate as his sole beneficiary based on s. 20 of British Columbia Wills Estates and Succession Act.
The BCSC had to decide if the reproductive material was, in fact, legal property, and if so, did it pass to the applicant by succession, and finally, could it order that the material be released to the Applicant despite the lack of written consent.
The court concluded that the sperm was indeed property belonging to the deceased. It did so by reviewing cases dealing with the incidents of the use and ownership of sperm in both British Columbia and other common law jurisdictions. The court recognized that the common law had not historically allowed for any property rights in the human body or its products. However, it accepted that developments in science now called for a re-examination of that position. Where, as here, the parties had treated the sperm as property, this was a good indication that it was property. Further, not all incidents of ownership need to be present for ownership to arise. Ownership of body parts is contextual and often limited, as here, by legislation in the public interest. The prohibition on the sale of body parts does not mean they are not property.
The sperm was the personal property of the deceased. It had been stored for a fee paid by both the deceased and the Applicant. GFS would not destroy it without the written permission of the Applicant. The only claimant was the Applicant. The deceased had provided the sample for the purposes of conception even after his death. Accordingly, the property in his sperm passed to the Applicant on his death.
The court concluded it could as it found that the deceased had, in the circumstances of the case, consented sufficiently to satisfy the fundamental objective of the AHRA in that it was proven, free, and informed consent.
At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through the often-overwhelming discipline process. To find out more about how we can help, contact us online, or at 416-915-4234 for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).