Acting Quickly Is Essential
family and fertility lawyers
Sadly, people who want to become parents die too young, leaving their grieving partners childless.
The law in this area is very messy. Delays may prevent retrieval of viable eggs or sperm.
We can help. If you are in this situation call us on 0423 708 009.
If your partner is dying or has died suddenly, it is vital to act quickly. Doctors estimate that sperm needs to be retrieved within 12-48 hours, or it will be lost forever. To retrieve sperm or eggs, ordinarily, fertility doctors and their teams will have to be involved, in addition to hospital staff.
If the death is one concerning a coroner, for example, after a motor vehicle accident, it may be trickier to achieve preservation.
Not just sperm
Posthumous use is not restricted to the use of sperm. If your partner is a woman, then in most places in Australia you will be able to retrieve those eggs after death, have them frozen and used later. Freezing eggs is trickier than freezing sperm, as eggs (unlike sperm or embryos) don’t always freeze well. Talk to your IVF doctor about the risks.
Every State is different
Rather than there being one federal law, each State has its own rules about when eggs and sperm can be retrieved from bodies, or when existing eggs, sperm or embryos can be used after death. In addition, any consent form that you have signed with the IVF clinic might determine whether you can use the eggs, sperm or embryos after your husband, wife or partner has died.
Once the sperm, eggs or embryos are in storage, that doesn’t mean that they can be used. It is essential for there to be appropriate arrangements for their use – if at all possible, for which careful legal planning is needed. We are across tricky legal issues and are proud to have helped people become parents using the DNA of their dying partners.
Western Australia currently bans all post-humous use of eggs, sperm and embryos by the former partner. This does not mean that they cannot be retrieved. Nor does it mean that they cannot be preserved. There was a court case in WA which confirms what we have previously advised – that it may be possible to export sperm of a deceased man from Western Australia, for use by his widow or former partner in assisted reproductive treatment such as IVF, interstate.
Prevention is better than cure. For those who know they are dying, or at risk of dying, fertility preservation is wise. It’s important to have proper steps in place if you want your partner to become a parent from your DNA, after you are no longer there. If you don’t take proper legal steps, then you may not achieve your wishes.
Putting your sperm into storage may not be enough – there have been cases where stored sperm can not legally be used. It is essential that your directions are in writing and clearly documented, preferably in a will; and that other directions are provided for your spouse and your IVF clinic. We help clients with this process.
Sadly, we’ve had clients die. The good news is that their widows have been able to give birth to their children. Precious memories can be created despite the grief of loss.
Contact Us For Posthumous Reproduction Assistance
We have the honour and privilege of helping our clients achieve their dream of becoming parents.