Martin Faull

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About five years ago, I was involved in a remarkable case involving a woman who fought for the right to use her deceased husband’s sperm to have a baby.  Below is a brief summary of how this remarkable case played out.

The deceased husband was killed in a motorbike accident over the weekend of 19th March 2011.

The wife sought to recover the deceased’s sperm to use to bear children.

The deceased had made a Will but had not left any directions with respect to his body.

At first instance an urgent application was heard on the following Monday morning by His Honour Justice Gray of the Supreme Court seeking recovery of the deceased’s sperm and permission for storage.

Despite the Court granting the application most medical professionals contacted refused to perform the procedure for insurance reasons.

Eventually a senior Doctor at Repromed did agree to assist and attended at the Coroner’s office to recover the sperm.

We learned during this process that the sperm needed to be harvested within 48 hours of death to ensure its maximum viability although they survive for up to 5 days post death.

At the time of the application ownership of a body and the right to life after death had been and remains the subject of serious debate around the world.

The deceased’s body was under the exclusive control of the State Coroner pursuant to section 7 or 32 of the Coroner’s Act.

The Coroner has no obvious power to authorise the taking of tissue or spermatozoa from a body save for the purposes pursuant to section 7 of the Act or for a post mortem pursuant to section 22.

It was argued that the applicant widow as the next of kin of the deceased has the power to authorise the removal of tissue from the body of the deceased for medical purposes pursuant to section 22 of the Transplantation Anatomy Act.  The power extended to retention of the tissue.

It was submitted that the South Australian Supreme Court had inherent jurisdiction to make the order to harvest the sperm from the deceased.

There had been disagreement in case law around the States of Australia about the extent of the inherent jurisdiction of the Court for applications such as this.

At the time there were two recent Victorian decisions accepting the Court’s inherent jurisdiction extended to removal of tissue from dead bodies.

Fortunately His Honour Justice Gray accepted it was within the Court’s inherent jurisdiction and made the Orders sought.

The second stage of the application was to seek a declaration that the applicant widow was entitled to possession and use of the sperm.

We made application to the Minister for Health and Aging to vary the conditions of registration pursuant to the terms of the Assisted Reproductive Treatment Act 1988 to enable the applicant wife to undergo in vitro fertilisation treatment in South Australia.  The application was rejected.

Reproductive treatment is governed by the Assisted Reproductive Treatment Act 1988 and specifically section 9 sets out the specific circumstances enabling the use of sperm.

In this matter the applicant widow did not meet any of the prescribed circumstances.

We were able to provide evidence to the Court from a number of sources that the deceased and the applicant widow had been for some months actively trying to conceive.

This was by both medical and lay evidence.

We were able to show the Court that any child would be welcomed into a supportive, stable, safe, caring and loving environment and that the applicant widow was financially able to provide for the child.

The Attorney General intervened making submissions regarding interpretation of relevant South Australian legislation regarding the use of sperm although the Attorney-General neither opposed nor consented to the relief sought.

The Court also heard from the deceased’s parents who did not oppose the application but expressed some reservations.

It was determined that the Gena Clinic in Canberra, Australian Capital Territory which did not have legislation in the same terms as ours could perform the in vitro fertilisation procedures.

Finalising the matter His Honour Justice Gray concluded that the applicant widow and the deceased had decided to start a family and but for his death their attempts to do so would have continued.

The applicant widow as a mother would provide a loving, caring and stable environment for a child and that she is in a position to meet the emotional and financial needs of her child.  His Honour was satisfied of her wider family support and commented that she was a determined and courageous woman.

His Honour granted the applicant widow possession of the sperm and use of it under the control and supervision of the Genea Clinic.

RE H, AE (No 2), [2012] SASC 177 and RE H, AE (No 3), [2013] SASC 196 make interesting reading for those interested in these types of issues as His Honour does discuss the relevant interstate decisions and the background to the matter.

The applicant widow subsequently gave birth to a healthy baby girl.