Your Partner Just Passed Away – You Have HOURS to Act!

Thursday, August 28, 2025

I’m Stephen Page of Page Provan, a family and fertility lawyer. If you are reading this because you or someone you love faces the unthinkable — the sudden death or imminent death of a partner and you want to preserve the possibility of future children — this article explains what the law allows, what has changed, and what you should do in the first hours.

Why this matters: time is everything

When someone dies or is close to death, there is only a very short window during which sperm, eggs or other reproductive material can reliably be retrieved. Historically, families and even some lawyers believed that the only lawful route to posthumous retrieval in Queensland was to obtain an urgent Supreme Court order. That belief cost some grieving people the only realistic chance to preserve reproductive material.

That is no longer the case. Queensland’s Assisted Reproductive Technology legislation now provides a clear statutory pathway for retrieval and storage authorised by the surviving partner — in many situations, without the need for emergency court proceedings.

What changed: an overview of the law

Under the Assisted Reproductive Technology Act in Queensland, a surviving spouse or de facto partner can authorise the retrieval of a deceased or non‑responsive partner’s reproductive material. This statutory scheme means you do not have to—and in most cases should not—rush to obtain a Supreme Court order for retrieval.

Key points about the current legal framework:

Authority to authorise retrieval: The surviving partner (widow or widower, or partner) can authorise retrieval of sperm, eggs or embryos.
Pre‑death retrieval permitted: If death is imminent or recovery is not expected, the authorised person can request retrieval before death. This is a major change from the old position.
Location does not matter: Whether the body is in a hospital or the morgue, the authorised person may sign the required consent for retrieval.
If the authorised person is incapable: Where the surviving partner is incapable of authorising, a family member may be able to do so in “special circumstances” (the Act sets out how this works).
Medical sign‑off is required: Clinicians must agree that retrieval is medically appropriate; in some cases doctors have been reluctant to sign off, which can cause practical difficulties.

The human story that drove reform

I lobbied for these changes after being approached many years ago by a doctor who faced an impossible situation. A man in a coma was not expected to recover. He and his partner wanted sperm retrieved immediately because the doctor believed that as the patient deteriorated, any viable sperm would also degrade; by the time death occurred and it was lawful to retrieve under the old rules, there might be no viable sperm left.

At that time there was no lawful basis for pre‑death retrieval. The man’s partner had to wait until he had died, but by then the sperm were not viable. That heartbreak convinced me that the law needed to change so that no other partner would lose the chance by being compelled to pursue emergency court action or face an impossible delay.

What happens after retrieval: storage, counselling and use

Retrieval is only the start. What you can later do with the sperm, eggs or embryos is controlled by ethical guidelines and, from 1 September 2025, by regulations under the Assisted Reproductive Technology Act.

Under current national Health and Medical Research Council (NHMRC) ethical guidelines and clinical practice:

The reproductive material must not be used if the deceased expressly objected to posthumous use.
Use is generally restricted to the surviving partner or partner‑equivalent for their own reproductive purposes (i.e., not for sale, donation beyond that use, etc.).
There are mandatory counselling requirements, provision of information and a cooling‑off period before the material can be used for reproduction.
Independent approval is typically required before use — in practice this has often been provided by an independent fertility counsellor who is properly briefed by the clinic.

These safeguards aim to protect the deceased’s wishes and the welfare of any future child, while giving the surviving partner a path to use the reproductive material when appropriate and lawful.

What changes on 1 September 2025 — and what we still don’t know

At the time I recorded the original message (June 2025), the statutory retrieval authorisation was in force, but the regulations governing approval for future use were not yet published. The major change expected from 1 September 2025 is that the Assisted Reproductive Technology Act will contain further provisions (via regulation) about the approval process for the use of stored material obtained from a deceased person.

What I expect — based on current practice and what the regulations are likely to adopt — includes:

A formal requirement for an independent authority or appointed decision‑maker to approve the use (instead of ad hoc arrangements).
Procedural rules about counselling, information and a required cooling‑off period before the stored material can be used for reproduction.
Clearer documentation and administrative steps clinics must take when receiving requests to use material obtained from a deceased or non‑responsive person.

However, at the time of writing the final regulations had not been published in draft publicly. I will continue to watch for the regulations and discuss any substantive differences as they become available.

What to do in the first hours — a practical checklist

If you find yourself in the situation where your partner has just died or is imminently dying and you want to preserve the possibility of future children, take these practical steps immediately:

Tell the treating medical team you want urgent retrieval. Make your wishes known clearly to the doctor in charge and the hospital’s fertility/reproductive team (if one exists). Time is critical.
Ask whether the clinic or hospital has a protocol for posthumous retrieval. Many public and private hospitals and fertility clinics have procedures in place now that reflect the Assisted Reproductive Technology Act.
Authorise retrieval in writing if you can. The Act empowers the surviving partner to sign authorisation. Complete whatever consent documentation the clinic or hospital requires.
Request medical sign‑off. Clinicians will have to approve the procedure as medically appropriate. Be prepared that some clinicians may need prompting or legal reassurance about the statutory authority.
Make decisions about storage and funding. Ask where the material will be stored, for how long, what it will cost and what the clinic’s policy is for later use.
Ask for independent counselling referral. Even though retrieval is urgent, later use will require counselling and a cooling‑off period. Make sure you understand those future steps.
If you cannot act, identify who can. If you are physically or mentally incapable of signing, explore the Act’s special circumstances provision so another family member can authorise.
Contact a specialist fertility lawyer. If there is any doubt or resistance from clinicians, get legal advice quickly — but understand that in most cases you should not delay retrieval to seek a court order.

Who can and cannot authorise retrieval

Under the current law, the first port of call is the surviving partner. That person has primary statutory authority. If the surviving partner is incapable of making decisions, the Act allows for another family member to act in special circumstances.

Do not assume that a parent, sibling or adult child automatically has the right to order retrieval — the Act sets out how incapacity and special circumstances work. If you are unsure, obtain immediate legal advice from a lawyer experienced in fertility law.

Practical obstacles — and how to respond

One of the real world problems I’ve seen is clinician reluctance. Some doctors have been hesitant to sign off on retrieval despite the statutory authorisation. That can create delay and stress.

If you encounter clinician resistance:

Ask to speak to the hospital legal or ethics team; they are often familiar with the Act and can provide guidance.
If necessary, ask the treating team to put any refusal in writing and explain their reasons so you can seek immediate legal advice.
Keep detailed records of who you spoke to, when and what was said. Time stamps matter.

Why you generally should not go to the Supreme Court first

There are rare circumstances where urgent court orders may still be appropriate. However, in the vast majority of cases under the new statutory regime, a court application is unnecessary and can waste precious hours or days. The Act was designed precisely so that surviving partners can authorise retrieval quickly and lawfully without the need for emergency litigation.

“You don’t need expensive Supreme Court orders anymore — and in most cases you shouldn’t.”

That is a simple but important message: focus first on medically safe, lawful retrieval steps under the Assisted Reproductive Technology Act. Reserve court action for only the exceptional situations where statutory pathways are blocked or ambiguous.

A final note about future use and deciding what’s right

Retrieval and storage are urgent procedural matters. Deciding whether to use stored reproductive material later is a different, deeply personal decision that is regulated to protect all parties involved — the surviving partner, the wishes of the deceased and the welfare of any child.

Expect to be asked to undertake counselling, to receive information about the legal implications and to observe a cooling‑off period before using material in assisted reproduction. These requirements can feel intrusive when grief is fresh, but they serve to ensure decisions are informed and respectful of the deceased’s autonomy.

Conclusion — act quickly, get support

If you are facing the death or imminent death of a partner and want to preserve fertility options, move quickly but calmly. Tell medical staff immediately, complete the statutory authorisation if you can, and ask for immediate storage and counselling arrangements. The Assisted Reproductive Technology Act in Queensland gives surviving partners a lawful path to retrieve reproductive material without rushing to court — but the system works best when you understand the steps and where to get help.

If you want help navigating the practical and legal steps, or you are a clinician seeking clarity about your obligations, reach out to a specialist family and fertility lawyer who understands the Act and the NHMRC guidelines. I will continue to monitor the regulations that take effect on 1 September 2025 and update my clients and colleagues about any practical implications.

My aim in writing this is simple: to prevent another family losing the only chance to have a child because of delay or outdated assumptions about the law. When every hour counts, know your rights and the lawful options available to you.