Who Owns It Anyway? Reproductive Technology and the Law

In a recent decision, W.(K.L.) v. Genesis Fertility Centre, 2016 BCSC 1621, the British Columbia Supreme Court tackled the question of who owns human reproductive material.

In W.(K.L.) v. Genesis Fertility Centre, the parties were married and desperately wanted to start a family. As the husband struggled with various medical conditions, the parties arranged for him to create reproductive material and store it with a fertility centre to protect their future ability to have children. Unfortunately, the husband died without giving his written consent to the wife’s use of his reproductive material for the purpose of creating an embryo. Consequently, the fertility centre refused to release the material to the wife.

Upon the wife’s Application to the British Columbia Supreme Court, the Court found that the parties had been unaware that written consent would be necessary for the fertility centre to release the material to the wife. Moreover, the Court went on to find that, in light of the husband’s enduring wish to conceive a child with the wife, had the requirement for written consent been brought to his attention, he would have given his consent in writing.

The Court went on to review the existing law in this area, which has traditionally stood for the proposition that there can be no property interest in the human body or body parts. However, the Court noted that recent developments in medical science called for a change in the legal approach to this issue and that, at least in the context of this case, the husband’s reproductive material could be classified as “property.” As such, since the husband had held the rights of use and ownership in the reproductive material during his lifetime, that property interest had passed to his wife after his death. The Court ultimately concluded that to deny the wife the use of her deceased husband’s reproductive material would be “both unfair and an affront to her dignity.”

This case is an interesting illustration of how Canadian law must constantly evolve in order to keep pace with developments in modern science and reproductive technology.