When a person dies, those left behind are tasked with the challenge of dividing and distributing his or her property. Disputes often erupt about how to split this property, and the answers usually lie in a will or statute setting out to whom the property is to go. It is only in very rare circumstances that the discussion turns to whether certain items count as property. The issue becomes particularly complicated when the putative property consists of human reproductive materials.
In J.C.M. v. A.N.A., the Supreme Court of British Columbia recently dealt with such an issue in the context of a separation agreement. The couple, both women, had obtained sperm from an anonymous donor through an American company. Each spouse had given birth to one of their two children using the donated gametes, so that their children were biologically related to each other. Several years later, the couple separated. The separation agreement divided all joint property of the relationship. At the time of separation, they did not turn their minds to the remaining samples of sperm then stored at a facility in Vancouver. Several years later, J.C.M. entered a new relationship and wished to use the remaining samples to conceive so that their child would be biologically related to the two children from her prior relationship. A.N.A. wanted the vials destroyed and refused to consent to their release.
Faced with the difficult decision, the court had to consider whether the vials were "property", such that they fell under the terms of the separation agreement. There is a longstanding common law rule that parts of the human body are not property. The court looked closely at an American case, Hecht, which dealt with whether or not a deceased testator could bequeath gametes to his girlfriend by way of his will. The American courts declined to decide whether human gametes were property generally, deciding only that they were property for the limited purpose of the applicable legislative provisions. At one stage, it was decided that 20% of the sperm vials belonged to Ms. Hecht based on a settlement agreement pertaining to the testator's will between herself and his existing children. This was overturned on appeal, wherein the court found that, although the vials were the testator's property for the purpose of wills legislation and available for Ms. Hecht's use, they were not subject to division through an agreement.
Weighing Hecht and several other American and Canadian cases, the B.C. court held that, in this context, the vials were property and therefore were to be divided as such pursuant to the terms of the separation agreement. Important to the court's reasoning was that A.N.A. would not have a parental relationship to any children that might be born to J.C.M.
While some other jurisdictions have taken legislative steps to address this question, the issue of whether or not gametes can be dealt with by way of will in Ontario is still evolving. As reproductive technology continues to advance, new questions will inevitably arise.
Thanks for reading.