Law Times

Law Times • OcTOber 24, 2016 Page 11 www.lawtimesnews.com Lawyers urged to address cryo-preservation in wills Frozen reproductive material carries legal consequences BY MICHAEL MCKIERNAN For Law Times T he federal Assisted Hu- man Reproduction Act could soon become a core statute in the prac- tice of wills and estates lawyers in Ontario, according to a fertil- ity law expert. Sara Cohen, the founder of Fertility Law Canada, told the Ontario Bar Association's trusts and estates law section that recent advances in cryo-preservation — the process by which human re- productive material is frozen and stored — means use of reproduc- tive technology will become even more routine, making fertility law impossible for estates lawyers to ignore. "For all of you practising in the wills and estates area, this is going to change your world," said Cohen, who spoke at the OBA's Toronto headquarters for a ses- sion focusing on the intersection between assisted human repro- duction and estates. "What we're able to do is we're able to take sperm and freeze it for later use, we're able to take embryos and freeze them for later use and, as of the past few years now, we're also even able to take ova — hu- man eggs — and freeze those for later use, too." According to Jessica Feld- man, an estates lawyer with To- ronto firm Bales Beall LLP and a member of the OBA section's executive, the Sept. 27 event was intended to boost awareness of a section of the law that has be- come relevant to an increasing proportion of the population. "This is an area that is fairly unknown to many estate practi- tioners," Feldman said. When it comes to drafting wills, Cohen said clients' previ- ous or planned involvement with assisted human reproduction could have serious implications for the document's contents. "As lawyers, it's really impor- tant for us to consider right off the bat whether or not clients have cryo-preserved material. If they have reproductive material actually stored somewhere, you want to know about it," Cohen said. "You also want to consider if someone has ever acted as a donor, or if someone has been a surrogate before." At Toronto firm WeirFoulds LLP, estates litigation partner Clare Burns said client intake forms have already been updated to include questions about stored genetic material and donorship, in part due to the sensitivity of the information they can elicit. "The good thing is, when you have couples coming in, if one of the couple hasn't shared with the other that while they were at medical school in the U.S. they were a sperm donor, they can have that revelatory conversa- tion at home as opposed to in your office," Burns said. The firm got immediate vin- dication after it began collecting the information, according to Burns. "The very next set of clients who came in had a son who had acted as a sperm donor in the U.S., so they actually had serious concerns. They knew children had been born as a result of his donation, and they were con- cerned about excluding them from issue and child class gifts in their wills," Burns said. According to Burns, lawyers should be "seriously worried" about their drafting of class gifts in wills where sperm or egg dona- tion has occurred, since parent- age is decided based on the law of the province where the child is born. And while B.C. and Al- berta have amended legislation to emphasize that a sperm donor will not be considered a parent purely due to the fact of the dona- tion, the law is not so clear else- where in Canada, Cohen said. For existing wills where these issues have not been f leshed out by drafting lawyers, Burns pre- dicted future litigation was in- evitable. "Where, for instance, one line of the family doesn't like the other line of the family, and they know that a child was born by as- sisted human reproduction with a surrogate, with no genetic con- nection to the intended parents, I'm confident they will take the position that the child does not take in the line of succession," Burns said. "And if there is enough money involved, that will go to the court of appeal for sure." Another potential for legal dispute concerns the status of sperm, eggs and embryos as property, and the conf licts that can arise as a result of s. 8 of the ARHA, which deals with the consent to use a person's repro- ductive material both before and after death. When children actually re- sult from the reproductive ma- terial left behind by a deceased person, whole new avenues of litigation possibilities open up, according to Burns. "What happens when you have a dead male who consented to the use of his frozen sperm by his mistress but the will pro- vides that the residue of his es- tates goes to his wife? Now his wife has the property right in the sperm, and the mistress has the consent to use it. This case hasn't happened yet, but I'm confident it will," Burns said. LT FOCUS Sara Cohen says that, when drafting wills, lawyers must keep in mind their clients' past or future involvement with assisted human reproduction. Learn how recent decisions and legislative amendments will affect your practice and clients in estate matters with Key Developments in Estates and Trusts Law in Ontario, 2015–2016 Edition. Topics discussed: • The Administration of Estates with Multiple Wills • Dependant's Relief Claims under the Succession Law Reform Act • Joint Accounts • The Law of Trustee Disclosure Obligations in Canada: Has it Come Full Circle? • Passing of Accounts • Physician Assisted Dying: Is the Debate Over? • Powers of Attorney & Substitute Decision Making • Qualifying Testamentary Spousal Trusts – Considerations and Pitfalls in Planning for Their Use and Administration • Recent Court of Appeal Decisions With Application to Estates & Trusts Law • Solicitor's Negligence • Taxation of Trusts and Estates • Testing Testamentary Freedom • To Vary or Not to Vary: A Review of Significant Trust Law Cases in 2015 New Edition Key Developments in Estates and Trusts Law in Ontario, 2015–2016 Edition Editor: Melanie A. 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