A B.C. Supreme Court judge has given a clinic at the BC Women's Centre for Reproductive Health permission to destroy and dispose of the specimens if clients don't let the clinic know by Dec. 24 that they want the samples transferred to another facility.
The clinic, run by the Children's and Women's Health Centre of British Columbia branch, has been storing sperm specimens for more than 400 class-action members since 2010, when those samples were transferred from a lab run by UBC.
The group, led by lead plaintiff Howard Lam, is suing the university after a power failure in 2002 destroyed hundreds of sperm samples.
But the fertility clinic also stores sperm and embryo samples for about 850 other people, and it applied in October for a B.C. Supreme Court order to dispose of all specimens.
The clinic stopped operating last year, none of its clients are paying for storage, and it doesn't have the money to keep storing the specimens, court documents posted online this week say.
Lawyer Arthur Grant, who is representing the plaintiffs in the lawsuit, had argued against the order, as it could "negatively impact the rights of the plaintiff and class members in the class action."
But Justice Bruce Butler said in his ruling that the order is warranted because the clinic has done its due diligence.
"The applicant has gone through an extensive process in an attempt to contact all individuals who have stored their specimens at the fertility clinic," he said in his decision.
"Some have asked that their specimens be transferred to other storage facilities and some have asked that they be destroyed. However, many have not responded and the applicant has been unable to contact some of the individuals."
Besides, there is no practical reason to keep the specimens belonging to the class-action members since UBC has admitted they are damaged, said Butler.
"The class members may, of course, have personal reasons for wanting to preserve the specimens and have a right to do that. However, they have been given that opportunity," he said.
The class members, many of whom were cancer patients about to undergo medical treatments, had their sperm preserved for an annual fee in a freezer at the UBC Andrology Lab. The freezer was set at temperatures below -130 degrees Celsius, but it experienced a power failure and the sperm samples were damaged.
Last month, Butler ruled that a signed agreement by the sperm donors cannot be used by UBC as a defence. The institution had claimed that a clause in the agreement excluded it from liability.
Butler has ordered the fertility clinic at the BC Women's Centre for Reproductive Health to advertise that clients have until Dec. 24 to reveal their wishes about their sperm and embryo specimens.
If they don't get back to the clinic by then, the clinic can apply for a final order permitting destruction of the samples, Butler said.
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