Don't Forget the Future: Including Reproductive Material in Your Will

When preparing your estate plan, you may understandably focus on key issues that have traditionally always been an important part of the process, such as executorships, asset distribution, guardianship arrangements, and funeral preferences. However, advancements in technology and the increasing prevalence of assisted reproduction have created a whole new area to consider when preparing your plan – the fate of frozen genetic material.

While assisted reproduction has been around for many years, its increasing popularity, particularly during the COVID-19 pandemic, has meant that the treatment on death of frozen genetic material has become a key part of estate planning for many individuals.

If you have frozen reproductive material, such as sperm, eggs or embryos, you should consider what uses, if any, you wish to allow with respect to that material after your death. In Canada, the use of frozen reproductive material is heavily regulated, so it is important to consult an experienced estate planning lawyer to ensure your estate plan is structured in such a way as to properly reflect your wishes.

Even if you don't have any frozen any reproductive material, you should consider your wishes as to whether you would consent to the removal of reproductive material from your body after death. This is permitted in Canada only where a donor has provided specific written consent. If this consent is provided, your removed sperm or eggs can be used to create an embryo for the following purposes:

1. The reproductive use by the person who is your spouse or common law partner at the time of your death;

2. Improving assisted reproduction procedures; or

3. Providing instruction in assisted reproduction procedures.

By explicitly addressing these matters in your will, you not only ensure that your wishes are respected, but also provide much-needed clarity for your loved ones during a challenging time.

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