Court File and Parties

COURT FILE NO.: CV-22-00690900-0000 DATE: 20240521 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Davinder Singh and Parveen Kaur, Applicants AND: Mount Sinai Fertility Corp. (Ontario Corporation No. 2170927)

BEFORE: Merritt J.

COUNSEL: Suvendu Goswami, for the Applicants Daphne Grace Jarvis and Ashley Maciuk, for the Respondents

HEARD: February 21, 2024

Endorsement

Overview

[1] The applicants Davinder Singh and Parveen Kaur seek a declaration that the written consent of their deceased son Mankirat Singh Bharara’s (“MB”) concerning his human reproductive material which is in the control of the respondent Mount Sinai Fertility Corp. (“MSF”) is in compliance with the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “Act”) and Consent for Use of Human Reproductive Material and In Vitro Embryo Regulations, SOR/2007-137 (the "Consent Regulations") and sufficient to allow them to make an embryo.

[2] The applicants seek an order for the release of MB’s human reproductive material to them.

[3] I heard the application on February 21, 2024 and issued an endorsement asking for further submissions on whether it would be a violation of the Act if MSF released MB’s cryopreserved sperm as directed by the applicants or an estate trustee to create an embryo outside of Canada. I also asked for further submissions as to whether this is an appropriate case for a sealing order or the use of pseudonyms.

[4] Both parties made further written submissions which I have reviewed.

[5] The applicants have abandoned their request for a sealing order.

Decision

[6] For the reasons that follow, and with regret, I dismiss the application because the Act prohibits the release of MB’s human reproductive material in the circumstances of this case.

Background Facts

[7] I will begin with a brief review of the tragic circumstances giving rise to this application. MB was diagnosed with cancer and admitted to Princess Margaret Cancer Centre (“Princess Margaret”) for treatment including chemotherapy. Princess Margaret recommended that he consider cryopreserving (“freezing”) his sperm for future use before undergoing chemotherapy, which he did at MSF.

[8] Prior to freezing his sperm on April 30, 2021, MB signed a consent form provided by MSF to allow MSF to remove and freeze his sperm for future and/or posthumous use pursuant to the Act (the “Consent Form”). The Consent Form signed by BM does not provide for the use of reproductive material by a third party.

[9] There is no evidence that anyone discussed with MB the type of consent which would be required for the use of his sperm by a third party. It makes sense that no such discussion occurred because it has been MSF’s position throughout that one cannot consent to donate human reproductive material, after death, to a third party and, one can only consent to donate, after death, to spouse or common law partner.

[10] The Consent Form also contains a full and final release in favour of MSF.

[11] All of MB’s cancer treatment was at Princess Margaret and he had no further contact with MSF after April 30, 2021 until November 13, 2021 when he fell into a coma and was transferred to the intensive care unit at Mount Sinai until he passed away on November 22, 2021.

[12] While undergoing cancer treatment, MB told his parents that if he were to die, he wanted them to use his sperm to make a baby and to raise his child so that he could “be alive through the child” and be with them.

[13] It is not disputed that MB did not provide written consent for the applicants to use his sperm to create an embryo and no verbal consent was communicated to anyone at MSF.

[14] The applicants now wish to use MB’s cryopreserved sperm to parent his child through invitro fertilization (“IVF”) using a surrogate.

Positions of the Parties

[15] The applicants say that when MB signed the Consent Form it was the legitimate expectation of MB and them that MB’s frozen sperm would be used at a later date. MB expressed his dying wish that his parents use the sperm to raise his child. MB was never given the option to consent in writing to the donation of his frozen sperm to the applicants. The applicants want to fulfill MB’s wish, with the assistance of an accredited and licensed fertility clinic, by using MB’s frozen sperm to create an embryo to attach to the uterus of a surrogate. This will give solace to them, a sibling to their only other child and “cement the identity of the biological progenitor”.

[16] MSF does not consent to or oppose the application. It seeks to assist the court in making a determination. MSF’s position is that the Act and Consent Regulations do not allow for the use of MB’s sperm without his written permission designating a recipient and, in any event, one cannot consent to donate, after death, to anyone other than a spouse or common law partner. The Consent Form does not address third party donation because it is prohibited by the Act, Consent Regulations and Safety of Sperm and Ova Regulations, SOR/2019-192 (the “Safety Regulations”). MSF was only licensed to collect, freeze and store (“bank”) sperm for future use by a patient or their spouse/partner. Collecting and storing sperm for third party donation involves a more complicated process of testing and quarantining.

The Issue

[17] The issue is whether the applicants’ proposed use of MB’s sperm contravenes the Act?

Analysis

[18] The Act and its Consent Regulations, prohibit the removal of human reproductive material from a donor without the donor’s prior, informed, written consent.

[19] In 1989, the government established the Royal Commission on New Reproductive Technologies (the “Baird Commission”). The Baird Commission’s 1993 Report Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of Government Services Canada, 1993) (the “Baird Report”) recommended clear and well-defined regulation of reproductive technologies and is the foundation of the Act. Among other things, the Baird Report recognized the importance of donor autonomy, encouraged Parliament to rely on its criminal law powers to regulate the use of human reproductive material and rejected relying on property law concepts: L.T. at para 25.

[20] “The Supreme Court of Canada has upheld the constitutionality of the section of the [Act] prohibiting the removal of human reproductive material without a donor’s prior consent. The Court concluded that Parliament enacted the prohibition in the exercise of its criminal law powers. In that context, the issue before us is limited to the proper interpretation of the relevant section and Regulation”: L.T. v. D.T. Estate, 2020 BCCA 328 at para 4.

[21] The issue in this case is one of statutory interpretation. The statue in issue is part of the criminal law and the prohibition against creation of an embryo, except in accordance with the provision of the statue, is a criminal in nature and punishable by a penalty under s 61.

[22] One of the guiding principles of the Act is to promote free and informed consent as a condition of the use of human reproductive technology.

[23] The Act declares as follows:

2 The Parliament of Canada recognizes and declares that (d) the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies;

[24] Section 8(1) of the Act protects donors’ interest in what use is made of their reproductive material. It provides:

No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.

[25] Section 3 provides that:

donor means (a) in relation to human reproductive material, the individual from whose body it was obtained,… and human reproductive material means a sperm….

[26] The modern approach is to read the words of a statute in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[27] Section 8(1) is a clear and unequivocal prohibition on the use of human reproductive material for the purpose of creation of an embryo unless the donor has given written consent in accordance with the regulations. The section does not list any exceptions. There is no provision in the section for the court to order otherwise or to grant relief from the prohibition. “There is no indication of any criteria a court might consider to avoid the universal and uniform application of the prohibition.” L.T. v. D.T. Estate at para 17.

[28] Section 4 (1) of Consent Regulations provides:

Before a person makes use of human reproductive material for the purpose of creating an embryo, the person shall have the written consent of the donor of the material stating that the material may be used for one or more of the following purposes: (a) the donor's own reproductive use; (b) following the donor's death, the reproductive use of the person who is, at the time of the donor's death, the donor's spouse or common-law partner; (c) the reproductive use of a third party; (d) improving assisted reproduction procedures; or (e) providing instruction in assisted reproduction procedures.

[29] The Consent Regulations are also clear and unambiguous. It applies to all persons who could make use of human reproductive material for the purpose of creating an embryo and requires informed, written consent by the donor. It specifies that the consent shall state for which of the specified purposes the human reproductive material may be used. There are no exceptions. It is consistent with and fulfills the purpose of s. 8(1) of the Act.

[30] Parliament has defined the only circumstances in which it is lawful to create an embryo: L.T. at para 24.

[31] In this case MB did sign a consent form. The Consent Form is a pre-printed form prepared by MSF. The consent does not make any reference to use of frozen sperm by a third party. The form contains three options in the event of death of a patient: 1) release to current spouse/partner for their reproductive use (if applicable), 2) use for research or 3) discard.

[32] The Consent Form satisfies the requirements of s. 3 of the Consent Regulations which requires the applicants to have a document signed by MSB confirming that, before he signed a written consent, he was informed of the permitted uses for his cryopreserved sperm, the requirements for withdrawing his consent, that in vitro embryos may be created in excess of the immediate reproductive needs, and how excess in vitro embryos will be dealt with in the context of consent given (i.e., whether consent is given for use by a third party, spouse or partner, or for research and instruction).

[33] The consent did not provide that MB consented to the use of his sperm after his death to create an embryo. This is not surprising since the donor can only consent to use following the donor's death, by a person who is, at the time of the donor's death, the donor's spouse or common-law partner.

[34] The applicants position is untenable. Granting permission to use MB’s frozen sperm to make an embryo to be used in a surrogate for his parents would be contrary to the explicit language of s 8(1) and the overarching objectives of the Act which is to protect the donor’s interest in their reproductive material by requiring express and informed written consent: LT para 33.

[35] As the court said in LT at para 36:

The statute reflects the Baird Report’s rejection of treating reproductive material as a form of property. To the extent that reproductive material has on occasion been treated by courts as having some attributes of property, such principles are displaced by and inconsistent with the prohibition found in s. 8(2). Indeed, in the face of clear statutory language any common law principles inconsistent with the proper interpretation of the statute are of no continuing effect.

[36] The Ontario Court of Appeal has also held that neither contract law nor property law principles govern in a case where consent under the Act is required: SH v DH, 2019 ONCA 454 at para 4.

[37] Parliament intentionally enacted a consent-based model for dealing with human reproductive material, in which the Act and the Consent Regulations are intended to apply.

[38] The release which MB signed in favour of MSF does not assist because this is not a lawsuit by MB or his estate against MSF. The fact that MSF might have a defence against a claim by MB or his estate does not change the fact that release of MB’s human reproductive material is unlawful and cannot be sanctioned by this court.

[39] Wilhelmson v. Dumma, 2017 BCSC 616 relied upon by the applicant is distinguishable. There the issue was whether a woman who was injured in an automobile accident, and would require a surrogate, could claim damages for the cost of using a surrogate in the United States. The court held that such damages were compensable even though paying for a surrogate is not legal in Canada. All of the steps of assisted human reproduction would take place outside Canada and therefore the Act was not engaged.

[40] In the present case, at least one of the required steps would take place in Canada. The distribution of MB’s sperm from MSF would take place in Canada.

[41] Sections 10(2)(a) provides:

Subject to subsection (3), no person shall distribute, make use of or import any of the following for the purpose of assisted human reproduction: (a) sperm that has been obtained from a donor and that is meant for the use of a female person other than a spouse, common-law partner or sexual partner of the donor;

[42] Section s10(4)(a) of the Act provides:

No person shall, except in accordance with the regulations, engage in any activity described in paragraph (3)(a) or (b) in respect of any of the following with the intention of distributing or making use of it for the purpose of assisted human reproduction: (a) sperm described in paragraph (2)(a);

[43] The term “distribute” is not defined in the Act. However, based on its plain meaning and use in the Safety Regulations, I find that it includes the act of releasing sperm to a recipient for reproductive use. The term “distribute” is used in the definition of “health professional” in the Safety Regulations as follows:

health professional means a person who is authorized under the laws of a province to make use of sperm or ova in that province and who: (a) makes use of sperm or ova or distributes sperm to a recipient for their personal use; (c) prepares, quarantines, labels or stores sperm for the purpose of its distribution by that person to a recipient for their personal use.”

[44] The prohibition against distribution in s. 10(2)(a) does not apply if the testing and screening required by the Safety of Sperm and Ova Regulations, SOR/2019-192 (“Safety Regulations”) is done. The testing and screening required by the Safety Regulations was not done because MB’s sperm was intended for banking, not for third-party donation. Some of the testing and screening would have had to be done prior to banking.

[45] There are exceptions in the Act but none of them apply in the circumstances of this case.

[46] If MSF were to distribute MB’s sperm to the applicants with the knowledge that none of the exceptions apply, it would be in breach of s. 10 of the Act and the Safety Regulations. Therefore, the suggestion that the applicants could take MB’s sperm out of Canada to create an embryo is not a solution.

[47] I have no choice but to dismiss the application.

[48] This order is stayed pending appeal pursuant to r. 63.02(1).

Costs

[49] The parties have agreed that there will be no order as to costs.

Merritt J. Date: May 21, 2024