Unified legal process needed for IVF with dead men's sperm

Friday, 7 February 2014

A University of Adelaide medical law expert is calling for a unified legal process to deal with assisted reproductive treatments involving a dead person's reproductive material.

Associate Professor Bernadette Richards says that currently, each Australian state and territory has different legal processes surrounding these controversial cases and, as a result, the proceedings may be emotionally charged and lengthy.

"Cases arise when a woman has suddenly lost her partner and, in the absence of formal consent, wishes to try to conceive a child using her deceased partner's sperm," Associate Professor Richards says.

"While a couple may have discussed starting a family, without 'proof' that the deceased partner wanted a child, the case must be heard before the court.

"Each stage of the process - retrieval and storage of the sperm, and the assisted reproductive treatment - is addressed separately. Access to the sperm is the first step in a long, complex and emotionally draining process."

In December 2013, a South Australian woman was granted limited access to her deceased husband's sperm but had to return to court three times over three years.

"The current South Australian legal process is too long and access to sperm does not guarantee access to reproductive treatment. They are completely different issues in law," Associate Professor Richards says.

"In the recent South Australian case, the woman was given permission to access the sperm of her dead husband but will have to undergo the reproductive treatment in an interstate facility. This is because South Australian legislation doesn't permit treatment using a deceased male's sperm without specific consent before death."

A Western Australian Judge adopted a different approach in 2013, stating that reproductive material should fall within the definition of human tissue.

"While including reproductive material in the Human Tissue Act (an Act used for organ transplants) could simplify the first step of the process, I believe each case is too subjective to be removed from the courts and addressed solely in a hospital setting," Associate Professor Richards says.

"The Human Tissue Act also wouldn't be adequate as it doesn't address provisions for using the retrieved sperm for reproductive treatment.

"Whether people agree with using a deceased person's reproductive material or not, the legal process for such cases needs to be simplified, unified and addressed promptly."

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