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The B.C. appeal court has ruled against a widow seeking access to biological material from her late husband so she can have children beyond the one the couple had.

At issue, says a court ruling this week, is that the deceased man left no written permission allowing the use of the material.

The couple “did not turn their minds to the possible posthumous use of their reproductive material,” says the ruling, referring to them as Mr. and Ms. T.

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Jasmeet Wahid, lawyer for Ms. T, said in an interview Wednesday that she is seeking instructions regarding an appeal to the Supreme Court of Canada.

“We’re simply trying to digest the reasons for judgement and seeking instructions with regards to those next steps,” Ms. Wahid said in an interview.

She declined to comment on her client’s reaction to the ruling, but added the outcome was disappointing to her, as counsel.

The 17-page appeal-court ruling acknowledges the tragedy in the facts of the case, referring to the “sad circumstances” of the matter and the “painful and tragic circumstances” facing the widow’s family.

A hearing on the case was held on Nov. 6. The ruling was written by Justice David Harris, and concurred by Justice Richard Goepel and Justice Patrice Abrioux.

However, the court stayed the order for 60 days to permits the parties to consider their position on a Supreme Court of Canada appeal.

The ruling says Parliament has enacted a criminal prohibition on the posthumous use of a donor’s reproductive material unless the donor had given prior, informed written consent to its removal and use for that purpose.

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Ms. T, says the ruling, contended that the prohibition does not bar her proposed use of her deceased husband’s stored reproductive material to allow her to create embryos and biological siblings for their existing child.

But the ruling says the court must act on Parliament’s “clearly expressed intent” in the Assisted Human Reproduction Act of 2004 and its relevant regulations.

“Respectfully, Ms. T’s position is untenable,” says the ruling, noting granting access to the reproductive material would be contrary to the “explicit language” of the act.

“I find nothing in the legislation that would allow Ms. T to assert a property or possessory right to her husband’s reproductive material.”

According to the ruling, Mr and Ms. T – who are not otherwise named - had been married for three years, and had one child. Then Mr. died suddenly and unexpectedly.

The couple had planned to have more children together, wanted siblings for their child and took joy in being parents, says the ruling, summarizing the facts of the case.

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For the purpose of analysis, the ruling said it was the view of the court that “Mr. T would have consented to the posthumous use of his reproductive material if he had considered the issue.”

Upon Mr. T’s death, Ms. T sought a court order seeking the removal of human reproductive material from Mr. T, that the material be stored at an IVF clinic for use creating embryos for her use.

Although a judge allowed the harvesting and storage of the material, he said it could not be released without a further order of the court.

This led to the appeal court hearing and ruling.

BC’s appeal court said Assisted Human Reproduction Act is an “unequivocal prohibition” on removing reproductive material without consent.

“It does not provide any exception for spouses or common-law partners. It does not provide any exception to the requirement of prior written consent. It does not deal with a situation in which a donor’s death is anticipated differently from one in which it is unexpected,” says the ruling.

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“There is no indication of any criteria a court might consider to avoid the universal and uniform application of the prohibition.”

The BC attorney general and attorney general of Canada were intervenors in the case. The province declined comment on the case Wednesday and the federal attorney general’s department did not respond to a request for comment.

Dr. Jeff Roberts, co director of the Pacific Centre for Reproductive Medicine, and an associate professor at the University of British Columbia, said, in an interview, the law is strict in these cases.

He also said the clarity of the law raises questions about what the Supreme Court of Canada could contribute, although all rulings can be helpful. “I am not sure what more could be added,” he said.

“The question from the clinic side is more how valid are some of our consents. A lot of us have a little insecurity in terms of how binding some of our consents are and that’s why we always recommend patients get legal opinions when it’s not clear.”

He added, “We do get these calls periodically from families wanting us to get sperm, and it’s quite illegal to do that without the (deceased) person’s permission of course,” he said. “You simply can’t so the procedure.”

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He said it is incumbent on clinics to make the law clear to clients when they sign on to store biological material, and for clients to be explicit about the use of such material.

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