Devry Law
By Esther Abecassis
June 16th, 2025
How will your stored reproductive material be dealt with after your death? Will the material be disposed of, or does the material form part of your estate to be passed on to a selected beneficiary?
While reproductive material may be considered property that forms part of your estate, the use of reproductive material in Canada is strictly governed by the Assisted Human Reproduction Act. The AHRA is a consent-based regime; any reproductive material cannot be used without the donor’s consent, as prescribed by the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations.
The AHRA addresses three types of reproductive material: reproductive material used to create an embryo, reproductive material posthumously retrieved from a donor, and in vitro embryos. In each case, the reproductive material cannot be used without the donor’s written and informed consent.
Drafting a Will to Include Reproductive Material
It is not enough for you to simply state your preferences regarding reproductive material in your Will; if you want your partner or another third party to be able to use the material after your death, there are specific legal requirements that must be met.
Namely, you must provide explicit written consent for the intended use of your reproductive material, and the purpose must be one that is allowable under the AHRA.
You should also consider the following:
- Estate Trustee: Ensure that the estate trustee named in your Will knows your wishes regarding your stored reproductive material and has instructions on how to access or retrieve it after your death.
- Posthumous Conception: If you have a plan to have your reproductive material used after your death, you should consider the possible impact of posthumously-born children. Under the Succession Law Reform Act, a child conceived and born alive after your death may have a claim to your estate under the rules of intestacy and have standing to make a dependant support claim against your estate. When preparing your Will, also consider whether you want to include any children conceived and born after your death.
