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A “posthumous birth” is the birth of a child after the death of a biological parent. Posthumous births have occurred since antiquity, often when a male partner died from illness, accident or at war after conception and pregnancy had been achieved but before the birth occurred. “Posthumous reproduction”, on the other hand, is a distinctly modern phenomenon. Posthumous reproduction is the intentional application of advanced medical technology to achieve conception, pregnancy, and childbirth in a situation where one or both biological parents are deceased. This article addresses the posthumous use and retrieval of reproductive material as well as the inheritance rights of a posthumous child. Family and Fertility Law lawyer Megan Strachan advises those who wish to plan for such a scenario to consult a lawyer early to ensure that, if a situation of posthumous conception were to arise, the process goes smoothly and the involved parties’ wishes are respected, even after death. Intended parents should also consult a wills and estates lawyer to ensure that there are no unexpected implications with respect to a posthumous child’s entitlement to an inheritance.

Posthumous Use and Retrieval of Reproductive Material

There are many reasons why a couple may want to consider posthumous reproduction, such as when one partner is ill and undergoing radiation or chemotherapy for cancer, where one partner may be likely to inherit a genetic disorder or to simply have a plan in case of an accident causing untimely death. However, in Canada, removing sperm or eggs from the body of a deceased person in order to create an embryo is illegal without prior written and informed consent pursuant to according to the Assisted Human Reproduction (Section 8 Consent) Regulations (the “AHRA Regulations”).[1] The British Columbia Court of Appeal in LT v DT Estate,[2] recently considered the issue of posthumous retrieval of reproductive material. In this case, Mr. T died suddenly and unexpectedly, and without written consent to posthumous removal of his reproductive material for the purpose of creating an embryo. Mr. T’s wife contacted a fertility clinic about retrieving Mr. T’s sperm for further reproductive use and was informed that this type of retrieval should occur within 36 hours of death and that a court order was required. As a result, Ms. T brought an urgent after-hours application seeking a court order allowing human reproductive material to be removed from his body after death. Ms. T argued that the law had a gap that overlooked her specific situation – one in which the widow of a young man would have wanted her to have his child and would have consented to the use of his genetic material for that purpose, but died without making his wishes known in writing. Recognizing that it was a last minute urgent application, the trial judge determined that an order maintaining the status quo was required to allow Ms. T. the opportunity to provide submissions at a full hearing. The trial judge authorized the collection of Mr. T’s reproductive material with the condition that such material not be released, distributed or used until the court could consider the matter further.[3]

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Ultimately, the British Columbia Court of Appeal prohibited the posthumous use of Mr. T’s body genetic material. The court was sympathetic to the fact that the deceased Mr. T wished to have more children prior to his death, and acknowledged the painful and tragic circumstances confronting the wife. However, the court held that the law clearly prohibited the use of his reproductive material without prior informed written consent. Consent could not be inferred from prior statements of the deceased on the general topic of having more children. Pursuant to s. 7 of the AHRA Regulations, the consent needed to be a document signed by the donor stating that, before consenting to the removal, the donor was informed in writing that the human reproductive material will be removed in accordance with the donor’s consent to create an embryo for the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner. If you wish to address the potential posthumous use of reproductive material, the requirements of the AHRA must be satisfied. Even with written consent, certain guidelines need to be met. For instance, only the common-law partner or spouse of the deceased donor can make the request to use such material. It is also important to note that under Part III of the Ontario Family Law Act[4] which deals with support obligations, a “common-law” relationship is found to exist after three years. However, under the AHRA, which is the relevant legislation when dealing with posthumous reproduction, a “common-law partner” will exist after a period of only one year.

The Posthumous Child – Implications for Inheritance

A posthumous birth has special implications in law with respect to inheritance. Prior to January 1, 2017, the definitions of “child” and “issue” in subsection 1(1) of the Succession Law Reform Act (“SLRA”)[5] included, respectively, a child and a descendant conceived before and born alive after the parent’s death, but neither definition contemplated a scenario where a person is conceived after the death of an individual and born alive. The All Families Are Equal Act[6] amended the SLRA to expand the definition of “child” and “issue” to include children and descendants conceived after death and born alive, if the following conditions under s. 1.1(1) of the SLRA are satisfied: Notice to Estate Registrar: The deceased’s surviving spouse must provide notice to the Estate Registrar for Ontario that the surviving spouse may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent. The notice must be given in writing, in the prescribed form and no later than 6 months after the deceased’s date of death. Birth of the Child: The posthumously-conceived child must be born no later than the 3rd anniversary of the deceased’s death, unless the Superior Court of Justice allows for an extension. Declaration of Parentage: A court has made a declaration of the deceased’s parentage of the posthumously-conceived child pursuant to s. 12 of Ontario’s Children’s Law Reform Act (“CLRA”).[7] In order to obtain a declaration of parentage under the CLRA, the surviving spouse must apply to the court within 90 days of the child’s birth, or such later time as may be specified by the court, in appropriate circumstances. The surviving spouse must establish that the deceased provided written consent to parentage of a posthumously conceived child, and that consent was not withdrawn before death.

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The expansion of the definitions of “child” and “issue” will apply to a person’s Will unless a contrary intention is reflected in the Will. If an individual dies intestate (that is, without a valid Will) the definitions of “child” and “issue” under the CLRA will apply to the distribution of the estate and a posthumously conceived child will be entitled to a share of their parent’s and relatives’ estate.

Conclusion

The development of new technology has expanded the possibilities of parenting after death. The legislature has taken steps to address these new developments. Careful planning is required to ensure your intentions with respect to posthumous reproduction are upheld. If you have any questions about incorporating assisted reproduction into your estate plan, our Fertility Law and Wills and Estates teams would be pleased to assist you. For further information with regard to Surrogacy in Canada, please visit the MySurrogateMom website. This article was written by Family Law Lawyer Megan Strachan and Articling Student Wincy Ho.

[1] SOR/2007-137.

[2] 2020 BCCA 328.

[3] LT v DT Estate (Re), 2019 BCSC 2130

[4] RSO 1990, c F3.

[5] RSO 1990, c S26.

[6] 2016, SO 2016, c 23.

[7] RSO 1990, c C12.

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