Post-Mortem Sperm Retrieval
G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking to you today about posthumous issues. Sometimes, the decision is made to use sperm or eggs or embryos when someone’s died, after they’ve died. This area is really tricky, really, really tricky.
Sometimes there’s planning involved. For example, a guy knows that he’s got cancer. He might provide some sperm to a clinic to freeze it, to preserve his fertility, and I should say about that, there’s a really good book by the Cancer Council about this, about preserving fertility and cancer. They asked me to review it recently, check some of the wording, really, really excellent stuff.
But if you’ve gone through the process of planning, you want to make sure you get your paperwork right, so that if you have a spouse and your spouse wants to be able to use your sperm or your eggs after you’re gone, they can, and they’re not going to be stymied. I’ve acted a number of times where, sad, but it looks like he’s not going to make it and he’s made a conscious decision that his wife can be able to use his sperm after he’s gone.
Really tough conversation, but it’s one of those moments that that’s what we’re here for to help. But that’s better than the alternative and the alternative is that there might be a quantity of sperm that’s frozen there, but no one’s actually thought about posthumous use, or even worse, it’s typically him, occasionally her, but all the cases I’ve seen so far are him, he dies, and he dies unexpectedly.
He might have a heart attack, he might have had an accidental drug overdose, he might have fallen off a skateboard, bumped his head, never regained consciousness, and at which point she says, I’m in shock and I’ve got to recover the sperm and this has to happen typically within 24 hours of death.
Some lawyers have said to their clients at that point, they’re grieving widows, got to go off to the Supreme Court, I don’t.
There are procedures under the laws around Australia to be able to retrieve the sperm or the eggs without the need to go to court, and there are Supreme Court Judges who have said, I don’t have jurisdiction. So if you want to act quickly, you’ve got to act quickly now and I’ve done that quickly.
Two or three hours knock over all the paperwork and I can tell you, I think one of those had 70 phone calls in about three hours. Did it all, got all the paperwork done. Retrieval able to be obtained, and when looking at the retrieval process, then looking at the next step, can it be used? And here, Australia becomes pretty tricky.
Because if you’re in New South Wales, or Victoria, or South Australia, you can only use in some circumstances, and if you’re in WA, currently, you can’t use at all. So you can retrieve, but here you’ve got quantity of sperm or eggs sitting in a deep freeze at an IVF clinic, can’t touch. But what happens? Well, they get exported and they get moved within Australia and where do they get moved? Two places they typically end up, either the ACT or Queensland, and that’s because of different rules between the jurisdiction.
So I’ve certainly helped quite a few clients, some of whom live in New South Wales or Victoria or Western Australia, undertake their fertility journey in Queensland, because it can be done. I certainly want to make that process as quick and simple and cheap as possible, and you not only have to comply with that retrieval rule, but you also have to comply with the licensing conditions of the clinics which are laid down by the National Health and Medical Research Council, and the Fertility Society of Australia and New Zealand.
When you do the latter, those licensing conditions, the basic requirements are you got to sign up with an IVF clinic, okay, that’s pretty straightforward. So have all your consent forms there. You’ve also got to make sure that there’s no objection by the deceased to use. But typically, what will happen is he, and then most of the time it’s he, won’t have objected, but won’t have positively consented.
Well, if it looks like that’s contemplated that he might, then that should be okay. But every case, of course, is different and it’s got to be done carefully. It’s got to be only for the reproductive use of the spouse or partner, and partner isn’t defined, so I’ve had one case where they weren’t a de facto relationship, but they were engaged and very much a committed relationship. So I thought partner included her, and then there must be counselling, information provided, and a period of reflection.
So you’re not doing it at the heat of the moment, not making a decision that might be regretted later, and some take the view that that’s a year because the period is not stated. My view is it depends on the case, but in most cases, probably six months. Some cases, a year maybe longer, but most, six months, and then finally, must be reviewed by an independent body, and it depends on the clinic, it might be an ethics committee if they’ve got one, if they don’t, then there are others who fit the bill, someone like me.
I take clients through that, we avoid going to court. If we go to court, we burn a lot more cash, don’t necessarily get a better result. So I want to make sure my clients are able to get in and out of the process as quickly as possible.
If you go to court, typically you’ll slow it down. Recently, I took part in a panel at the Fertility Society of Australia and New Zealand Conference on posthumous of gametes and embryos, so gametes are eggs and sperm, and I also presented a paper there. My paper is on my website, stephenpage.com.au, as well as the Page Provan website, go and have a look at my paper.
As I said, it’s full of examples, full of jargon and law, but it really sets out here’s the legal landscape without a doubt. This is an area I’m really privileged to work in.
Nothing gives me greater joy than when I get an email from a client to tell me that however long ago when I helped her become, be able to use her late husband’s sperm, that she’s now had a child, and here’s a picture of her child it’s really meaningful stuff. Sometimes if you have to go through posthumous use, you may have to consider surrogacy.
Go and have a look at my book When Not If: Surrogacy for Australians. You can find it on my website, stephenpage.com.au, as well as the Page Provan website, and it says about my professional journey in this space, which started as long ago as 1988, and my personal journey with infertility and surrogacy.
But above all, it’s just crammed full of information about surrogacy; statistics in there, how to do it in different parts of Australia, amongst others.
So go and have a look. Good luck.