The passing of a loved one is a difficult and emotional experience, and it often brings about a range of legal and practical questions. In recent years, advancements in reproductive technology have given rise to new legal and ethical dilemmas, one of which involves accessing a deceased partner’s sperm for reproductive purposes.

There are two important legal questions that need to be considered;

• Who owns the stored sperm after death?; and
• Can that sperm be used in an assisted reproductive technology (ART) treatment?

The question as to who owns the stored sperm after death has been considered across many jurisdictions in Australia. The case that most succinctly considered the issue however is the case of Robin v The Public Trustee for the Australian Capital Territory & Anor [2015] ACTSC 100. In this case the Court found that the sperm of the deceased person that was held in a fertility clinic, was indeed the property of the estate of the deceased.

This means that the existence of a valid Will is of vital importance to ensure that stored sperm can be dealt with as per the wishes of the deceased, and that rights to the sperm vest in the personal representatives of the estate (in the same manner as any other property of the estate).

It is important to obtain advice from a top family lawyer with experience in cases accessing a deceased’s partners sperm. Barker Evans are experienced lawyers in dealing with these types of cases.

In New South Wales, the foremost authority regarding whether you can access and use your partner’s sperm after their death is the case of Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478.

In this case, the wife had taken steps to have sperm extracted shortly after the death of her husband, in the absence of prior written consent. She however asserted that her partner had expressed to her his desire for this to occur prior to death. The Wife as the administrator of his estate sought to utilise the sperm extracted for ART treatment outside of NSW so that she could fall pregnant with his child.

In this matter, his honour, Hulme J held that:

“Ms Edwards is the only person in whom an entitlement to property in the deceased’s sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm. “

The Court ultimately made orders entitling the Wife to possession of the sperm recovered from her late husband.

There was also a legal consideration to be made arising from Section 23 of the Assisted Reproductive Technology Act 2007 (NSW). This section prohibits providers of ART treatment from carrying out the treatment if the gamete (sperm or egg) provider is deceased unless the gamete provider has consented to the use of the gamete after his or her death. The Court in considering this determined that while Ms Edwards would be unable to carry out ART treatment in NSW because of the absence of her partner’s consent in writing to the use of his gametes, she is in no way prevented by NSW laws from travelling outside of the state or country to obtain the treatment elsewhere.

Surrogacy or sperm and ova donation agreements are legally complex topics, as such it is important to seek legal advice.

Your team at Barker Evans has experience with such matters and are ready to assist and guide you. Should you require legal assistance, we are only a phone call or email away. Please feel free to contact us on (02) 8379 1892 or at Info@barkerevans.com.au.