Assisted Reproduction After Death

The Alberta Law Reform Institute recently released their Final Report 106 Assisted Reproduction After Death: Parentage and Implications.

My daughters, lovely irreverent young women that they are, sometimes joke about which one of them will stay on our farmette and look after the oldies (referring to my husband and I) in order to inherit. What if we had some medical assistance in achieving parenthood, stored some embryos, one of us passed on, and the other wished to have a child after the death of a genetic parent? This scenario is completely feasible and possible and there are broad implications surrounding the issue.

The news release about the ALRI report describes the issues this way:

Rationale for this report

Advances in storing human reproductive material and assisted reproduction make it possible for a child to be born well after the death of the child’s genetic parent. While the law has long recognised parentage and inheritance rights where a child was already in the womb when a family member died, neither parentage nor inheritance rights are recognised outside this short time frame.

The Report reviews the current problems faced by families who want to register a deceased person as the genetic parent of a child. The Report recommends that the Family Law Act should be amended to allow a deceased genetic parent to be registered as the parent of a child born after his or her death. Such registration would be subject to appropriate consent by the deceased during life and consent of the deceased’s surviving spouse or partner when the child is born. Recommendations are also made to clarify when the deceased’s surviving spouse or partner can be recognised as a parent where he or she has no genetic relationship to the child. As Alberta law currently provides, however, a child would not be registered with more than two parents.

Why assisted reproduction?

Alberta families access assisted reproduction technology and store human reproductive material for a variety of reasons including active fertility treatment, in advance of many cancer treatments, and as a precaution against injury or death in high risk jobs such as military service. Having a child after the death of genetic parent is rarely – if ever – the first choice families would make. However, where such a choice is made, the law should recognise the child’s parents on the same basis as if the child had been born during the deceased parent’s life.

Implications for inheritance

The Report also looks at the implications in other areas of law from recognising a deceased person as a parent. The main area of concern is inheritance rights. The Report concludes that such after-born children should be able to inherit if the deceased parent provided for them expressly in his or her will. Such inheritance would not occur until the child was born alive. However, unless the parent or other relative makes a specific provision in a will, the child will not inherit.

Though perhaps different in rational, other provinces are also struggling with laws around assisted reproduction. Quebec legislation described in this CBC article about Bill 20 is one example.