LSB July 2018_Web

WILLS & ESTATES
The right to a deceased
person’s sperm
MARTIN FAULL, SOLICITOR, LINDBLOMS LAWYERS
About five years ago, solicitor
Martin Faull 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.
Martin explains the how this
remarkable case played out.
The deceased husband was killed in a
motorbike accident over the weekend
of 19 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
five 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 sections 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 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 mother 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, 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 was
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 her 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 in these types of issues
as His Honour does discuss the relevant
interstate decisions and the background to
the matter.
The wife subsequently gave birth to a
healthy baby girl. B
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THE BULLETIN July 2018