All About Estates

The Genetic Gift: Navigating the Legal Labyrinth of Genetic Material Donation in Canada

In the ever-evolving landscape of Canadian law, the donation of genetic material presents a complex and multifaceted challenge both in the case of inter vivos donations and posthumous ones. The intersection of property rights, consent, and privacy in this context is not only legally intricate but also laden with ethical considerations.  After a friendly debate about this issue, I thought I would share some of my thoughts.  This post considers the legal framework governing genetic material donation in Canada, highlighting the legal principles that may shape future policy.

Property Rights and Genetic Material

The question of whether genetic material can be considered property has been a subject of debate in Canadian jurisprudence. The recognition of a donor’s residual property rights in genetic material has marked a significant departure from traditional property common law principles.[1]

Consent and Autonomy

The legal requirements for obtaining consent for the donation of genetic material are outlined in the Assisted Human Reproduction Act, S.C. 2004, c. 2. However, the Act’s provisions have been criticized by some for lacking clarity.

The emphasis on explicit and informed consent underscores the importance of autonomy and self-determination in the context of genetic material donation. This area of law will likely continue to evolve, reflecting the unique ethical considerations involved in genetic material donation.

Privacy Considerations

The privacy implications of genetic material donation are vast and complex. The Personal Information Protection and Electronic Documents Act (“PIPEDA”) provides a framework for the protection of personal information, including genetic data. However, the application of PIPEDA to genetic material is not straightforward as it can be debated whether the provision of relevant genetic information without disclosing the donor’s name to third parties is covered by PIPEDA.

A novel interpretation of privacy rights in this context could encompass not only the individual donor but also their biological relatives as they would also share some similar (or in the case of identical twins, identical) genetic information. This perspective introduces a new dimension to the legal analysis, recognizing the interconnected nature of genetic information.

Conclusion: Towards a Comprehensive Legal Framework

The donation of genetic material in Canada is governed by a patchwork of legal principles and statutes. The legal landscape reflects a growing recognition of the unique nature of genetic material and the complex legal, ethical, and social considerations its donation entails.

As the law continues to evolve, legal practitioners must remain vigilant and engaged, contributing to the development of a legal framework that balances individual rights, societal interests, and the inherent complexities of genetic material. The genetic gift, as it were, is a legal labyrinth that demands our careful navigation and thoughtful exploration.

[1] See, for example, the decision of the Supreme Court of British Columbia, J.C.M v. A.N.A, 2012 BCSC 584.

About Maureen Berry
Maureen Berry is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Maureen’s practice is focused on wills, estate planning, domestic and international trusts, private corporation taxation, and executive compensation. Maureen also advises charities and non-profit organizations. Working with Canadian and international families, firms, corporations and charitable organizations, she provides advice on all aspects of private client matters. She is a leading expert in the fields of tax law and estate planning. As an Adjunct Professor at Osgoode Hall Law School, she teaches Advanced Estate Planning. Maureen has previously taught corporate tax and international tax at the University of Toronto and Western University, along with the Bar Admission course for up-and-coming lawyers.


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