Alberta Law Reform Institute Final Report on Assisted Reproduction After Death

The Alberta Law Reform Institute has published its Final Report on Assisted Reproduction After Death: Parentage and Implications:

"The idea of recognising parentage and inheritance rights for children born after the death of one of their genetic parents has been part of the common law for centuries. However, these provisions have only applied to children en ventre sa mère. In other words, parentage and inheritance rights are bestowed upon those children who are in utero at the time of a parent’s death, provided they are subsequently born alive."

"Advancements in reproductive technology mean that storage of reproductive materials and conception by assisted reproduction are achievable. Further, it is possible for assisted reproduction to occur after the death of one of the genetic donors. In other words, children may be conceived after the death of one of their genetic parents by using the deceased parent’s stored reproductive material. Given this prospect, it is appropriate to consider the legal status of such 'after-born' children."

The report makes a number of recommendations:

• Where a person provides reproductive material or an embryo and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the court may, on application, declare that person to be a parent of a child conceived after that person’s death on the same basis as if the child had been conceived through assisted reproduction during the person’s lifetime.
• Where a person provides reproductive material or an embryo and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the surviving spouse or partner should have standing to apply for a declaration of the deceased’s parentage where a child is conceived using the deceased’s reproductive material or embryo and the child’s birth mother is a surrogate.
• Where a person provides reproductive material or embryos and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the surviving spouse or partner should be recognized as a parent on the same basis as if the child had been conceived through assisted reproduction during the deceased’s lifetime.

The report examines the policies of a number of other Canadian jurisdictions.