Harvesting the sperm of a dead man – what does the law say?
The NSW Supreme Court has recently had to grapple with the question of who owns a dead man’s sperm. It is one of the many legal conundrums that arise in modern times due to the rapid advancement of medical science.
The case was centred around the rights of a widow to obtain access to her dead husband’s sperm, just hours after he died from a massive stroke while undergoing brain surgery at a Sydney hospital.
At the widow’s request, samples of her husband’s sperm were extracted and frozen. The widow then sought a declaration from the court to state that she was entitled to possession of the sperm so that she could conceive via IVF.
In vitro fertilisation in NSW requires written consent of sperm donor
The court heard the couple had been eager to start a family and had been trying to conceive a child since they married the previous year. However, under sections 18,19 and 23 of the NSW Assisted Reproductive Technology Act 2007, performing in vitro fertilisation is prohibited unless the donor has given written consent.
The late husband had not provided such consent. In saying this, as there have not been many cases heard on this subject, it has not yet been determined what type of written consent would be acceptable to a court.
Can a dead man’s sperm be transported out of NSW?
The widow wanted to transport her dead husband’s sperm to another state or overseas where she could legally use it for IVF. However, section 22 and 25 of the Assisted Reproductive Technology Act and section 36 of the NSW Human Tissue Act 1983 prohibit the extraction, storage or export of sperm without the written consent of the donor.
The court heard it might be possible under Part 5 of the NSW Guardianship Act 1987 to allow sperm extraction of an unconscious patient, but that law says that is possible only if it is for the medical benefit of the patient.
Legislation relating to ownership and use of dead man’s sperm requires further clarity
In his ruling in the case Chapman v South Eastern Sydney Local Health District, the judge said there was no foundation in law that allowed the widow to remove and use the dead man’s sperm for IVF in NSW. To do so could amount to an “assault or trespass” on another person under the legislation.
However, the judge ruled that the widow was entitled to the possession of the extracted sperm of her late husband and was permitted to transport it to the ACT. Here, written consent is not required to use the sperm of a man who is deceased.
Further to his ruling, the judge urged parliament to legislate a “clear rule” to avoid confusion in what has become a legal grey area.
Writing a detailed will is important to ensure your wishes are met upon your death
This type of legal quandary has emerged in a previous case heard in a South Australian court, where the widow of a man killed in a motorbike accident wanted to obtain access to her dead husband’s sperm. In that case the judge allowed the widow to take the sperm to Canberra to use for IVF.
However, the court first had to hear testimony from the dead man’s family, as well as people who knew the couple, to determine that this is what the man would have wanted.
If you are in a situation where you would like to grow your family, these cases demonstrate the importance of discussing these matters with your lawyer. Obtaining expert legal advice will help you determine whether you should leave written consent for the use and transportation of your sperm (or eggs), for example in your will, or in a statutory declaration.