Each year more Canadian women are delaying having children or looking at alternative options for building their families. According to the Society for Assisted Reproductive Technology, only 475 women froze their eggs in 2009. By 2018, 13,275 women had frozen their eggs - an increase of 2,695 %.
The conversation about reproductive assets has also become more prevalent in recent years. Celebrities like Chrissy Teigan, the Kardashians, and Gabrielle Union are sharing their personal reproductive experiences. These powerful women are helping empower women to make the decision that’s best for them – including freezing their eggs (and men freezing sperm).
But what happens to your eggs if they go unused? Most of us know we need a will to protect our assets, but what about our eggs and sperm? Have you considered the ways our DNA can live on after we die?
In this article, we cover frequently asked questions regarding what happens to your reproductive assets when you die.
Can Someone Use Your Egg Or Sperm After You Die To Have A Baby?
The answer is – it’s possible. But, there must be written consent from the person before their death. Under the Assisted Human Reproduction Act (AHRA), the person must acknowledge that their egg or sperm would be used to have a child.
What Are The Consent Regulations?
The AHRA has specific requirements for how their consent is written.
Under subsection 8(1) of the act, before using human reproductive material to create an embryo, a person must get a document signed by the donor of the material confirming that the donor was consenting to the use of the material.
Can A Spouse Use Stored Sperm Or Eggs After Their Partner Dies?
Yes, technically, the spouse or common-law partner can use stored sperm or eggs after their partner dies. There must be written consent documenting that they were advised of this authorization.
What Happens If There Is No Consent In Writing?
Without written consent, the spouse of a common-law partner is probably unable to conceive using their partner’s sperm or eggs.
The Supreme Court of British Columbia recently held in the case of L.T. v. The Estate of D.T., 2019 BCSC 2130, that a woman (Mrs. T) could not take and preserve the sperm of her husband (Mr. T), who died unexpectedly and without a will, to produce an embryo for reproductive use.
The Court considered novel arguments on statutory interpretation and consent, as well as the critical need for clear and explicit planning for genetic material. The Court took into account arguments about the legislative interpretation, consent, and the crucial requirement for explicit and transparent planning for genetic material.
Can I Include My Consent In My Will?
Yes! Written authorizations may be provided by clinic consent forms, independent authorization papers, or a decedent's will (preferably, it would be in both a consent form as well as the Will). The important requirements are that it be in writing and express consent for the intended usage.
Check out Our Guide For How To Make A Will In Canada →
Willful is an affordable option to make your legal will online. Although Willful does not have a specific section that includes your wishes for your eggs/sperm, it is possible to have a separate legal document drawn up, in addition to your will.
Why Should I Include My Consent In My Will?
Writing a will is the best way to ensure your wishes are taken care of and you have peace of mind when you pass away.
Including your wishes in your will ensures you get to decide how your legacy lives on. This includes deciding how your physical assets are divided up, but also your DNA.
You might already know that when your family grows by becoming a new parent or having children, you need to make a will (or update your will). The same applies when you freeze your eggs or sperm. It’s always best to prepare for the unexpected - decide how you want your eggs used in the event you are unable to use them how you intended.
Other Ways You Can Protect Your Assets
When thinking about estate planning, it’s important to think about how you want your assets taken care of after you pass away.
Your will (or last will and testament) is a legal document that outlines your wishes after you pass away. This includes your assets, such as property or money, and also outlines guardians/custodians that you would want to care for your minor children. In addition, planning for your pets in your will is important!
Fun fact: You do NOT need to visit a lawyer or notary to make a legal will in Canada. As long as you meet the requirements, you have a legal will!
Why Do Parents Need A Will?
Once you do have a child, it’s important to consider your wishes for your children in the event of an unexpected emergency or when you pass away. One of the most important tasks that should be on your “new parent financial to-do list” is making a will and estate planning. What assets do you want your children to receive? Who do you want to take care of your children if you can’t?
Get a free checklist for making a will as a parent →
The Bottom Line
Just like writing your will and including specific wishes, it’s important to consider other areas of your life you care about. Prepare for the unexpected by consenting to how you want your eggs/sperm dealt with after you pass away.
Ready to write your will? Start for free today →
Interested in this topic and want to learn more? Listen to this TED Talk where attorney Ellen Trachman talks about some troubling parents-to-be with stranger-than-fiction mix-ups and baffling lawsuits. While American law is different, Trachman’s TED Talk discusses the realities of reproductive innovation and reminds us to consider how we want our genetic material to be used.
