By Sheila Morris - Wills and Estates Litigation
Whether it is storing cord blood after giving birth or freezing embryos in anticipation of pregnancy, more and more of our clients are banking their genetic material. There are all kinds of reasons for a comprehensive estate plan that go beyond effective tax planning and providing for loved ones after death: ensuring the safety of banked genetic material is one of them. If you have stored your genetic material, or you are thinking about doing so in the future, you should speak with a reputable estates lawyer to protect these important assets, which can be more valuable than any amount of money in the bank.
In Canada, women who give birth have the option of storing their cord blood stem cells, which can later be used to treat certain genetic diseases and blood disorders. In fact, the practice has become so common that July is “Cord Blood Awareness Month.” There are three types of cord blood banks in Canada: public banks, which store blood for transplants into patients who are not the donor; private for-profit banks, which store blood for the donor’s child(ren) or family; and biobanks, which store stem cells for research and potential drug manufacturing. The blood in private registries belongs to the donor, though certain registries will allow the donor to list an additional owner. However, there is no uniform policy that applies to all banks. You should ensure that your estate plan makes provisions for your cord blood, including arrangements for storage payments after your death and granting access to a second owner or an estate trustee so he or she can access the material should the need arise.
Embryos, Ova, and Sperm
As we wait longer to have children, and since IVF has become more accessible, it has become increasingly popular to store embryos, ova, and sperm. While a recent family law case treated an embryo (fertilized egg) as “property” to be dealt with in accordance with the principles of contract law, sperm and eggs receive different treatment under the Assisted Human Reproduction Act, which requires the donor’s express written approval before the material can be used in creating an embryo.
For this reason, it is critical to consider how a will, or the absence of a will, will impact where your genetic material ultimately ends up. This is particularly important for common law couples. For example, if common law partners store embryos for later use, but one partner dies unexpectedly without a will, it is possible that the surviving common law partner could be left without any rights to the embryo at all. Or, consider the practicalities for those you may be leaving behind. Ontario’s Succession Law Reform Act provides that descendants and relatives of a deceased who were conceived before the deceased’s death and born alive after it will inherit as if they had been born in the deceased’s lifetime. Or consider the implications, both legal and practical, of a child who is conceived and born after a parent’s death. Can the deceased partner be a legal parent to that child? Recent amendments to the legislation have broadened the definition of “child” and “issue” to include a child who is conceived and born alive after a parent’s death, but certain conditions apply in order for the Court to make a “Declaration of Parentage” in respect of the deceased partner. Section 1.1 of the Succession Law Reform Act requires the deceased and the surviving spouse to have consented in writing (before the deceased’s death) to be parents of a posthumously conceived child; the surviving spouse must provide written notice to the Estates Registrar no later than 6 months after the anniversary of the deceased’s death; and, the posthumously conceived child must be born no later than the third anniversary of the deceased person’s death. Further, there are legal obligations that flow from a parent to a child, including succession. If certain conditions are met, children conceived and born after the death of their parent will be entitled to inherit and/or receive support from the estate of that parent.
Even with a valid will and without a dispute, a surviving spouse or partner may not have the information, or the legal right, to access banked genetic material in the event of the owner’s death. The law on genetic material is nuanced, and it can be complicated. For that reason, it is critical to consult a lawyer with expertise in the area. Taking appropriate steps now can prevent confusion, heartache, and litigation down the road.
If you have any questions or would like information on estate planning, litigation, or disputes, contact estates litigator Sheila Morris at firstname.lastname@example.org.
 S.H. v D.H. 2018 ONSC 4506.