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Canada’s assisted reproduction framework is built around a simple but important principle: human reproductive material cannot be used without proper consent from the donor. The Assisted Human Reproduction Act (AHRA) is the federal statute that establishes the principle that individuals can donate their reproductive materials to another for the purpose of creating an embryo.[1] Section 8(1) of the AHRA provides that no person may use human reproductive material to create an embryo unless the donor of said material has given written consent in accordance with the regulations. The Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations) details what that consent must look like and how it must be documented.[2]

Article 4(1) of the Consent Regulations is especially important for egg and sperm donation. It reads as follows:[3]

4 (1) Before a person makes use of human reproductive material for the purpose of creating an embryo, the person shall have the written consent of the donor of the material stating that the material may be used for one or more of the following purposes:

(a) the donor’s own reproductive use;

(b) following the donor’s death, the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner;

(c) the reproductive use of a third party;

(d) improving assisted reproduction procedures; or

(e) providing instruction in assisted reproduction procedures.

For example, if Woman A has her eggs cryopreserved, and wants her husband, Man A, to be able to use her eggs to create an embryo after the death of Woman A, she must give consent in writing to Man A that he can use said eggs for reproductive use (section 4(1)(b)).[4]

For example, if Woman A has her eggs cryopreserved, and wants to donate them to another person, Woman B, Woman A must provide her express consent in writing that Woman B has the right to use the eggs for reproductive use (section 4(1)(c) of the Regulations).[5]

For egg or sperm donation, this means the donor’s written consent can authorize the recipient’s reproductive use. Once the donation is complete and the donor has validly consented to third party reproductive use, the recipient may use the donated material for the reproductive purpose contemplated by the donation arrangement.

[1] Assisted Human Reproduction Act (S.C. 2004, c. 2) (AHRA), section 8(1).

[2] Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137 [Regulations].

[3] Ibid, section 4.

[4] Regulations, supra note 2, section 4(1)(b).

[5] Regulations, supra note 2, section 4(1)(c).