A woman in her 60s from Australia has successfully secured the legal right to collect her deceased husband's sperm, as she convinced a judge that they had contemplated having another child before his passing. The 62-year-old, whose identity remains confidential for legal reasons, intends to use the sperm for fertilization with a donated egg and subsequently have a surrogate carry the child to term.
The legal proceedings took place in Perth, Western Australia, where the court learned that the couple began considering expanding their family after the tragic loss of their 30-year-old son in a car accident in 2019. Six years earlier, their 29-year-old daughter had drowned during a fishing trip.
Having been married for 39 years, the couple explored the possibility of using the 61-year-old husband's sperm for surrogacy. Following his death on December 17 last year, the wife sought to collect and store his sperm at the hospital morgue. Faced with a delayed decision from the hospital, she urgently approached the state's supreme court a day later to compel medical professionals into action. In Western Australia, the posthumous use of reproductive cells is illegal, and optimal collection ideally occurs within one to two days after death.
In a ruling dated December 21, recently disclosed to the public, Judge Fiona Seaward ordered the harvesting of the sperm, citing no reason to believe the deceased husband would have objected to its removal. However, she emphasized that separate court orders would be necessary to authorize the use of the sperm for fertilization. Posthumous fertilization is presently prohibited in Western Australia, necessitating the woman to apply for the transfer of the sperm tissue to a jurisdiction that permits the procedure.
Despite seeking advice from fertility experts who cautioned that the wife was too old to carry a baby to term, the couple had contemplated surrogacy with the help of a younger cousin in the Philippines. Unfortunately, logistical challenges arose, as they discovered they would need to reside in the Southeast Asian country to proceed with the plan. In contrast, Queensland, Victoria, and New South Wales in Australia allow posthumous fertilization with varying restrictions. It is also legally permissible in the United Kingdom if the deceased individual had given consent.
Professor Roger Hart from the University of Western Australia acknowledged the medical feasibility of the case but highlighted the "real ethical challenges." He emphasized the involvement of counselors and psychologists in determining whether such actions align with ethical considerations. Professor Hart explained the intricate process involved, including the use of donor eggs and a surrogate, and noted that the child would never know its biological father.
While unusual, cases of harvesting sperm from deceased partners have occurred in Australia before. In 2018, a woman from Perth secured the right to retrieve sperm from her deceased partner in a civil case, also heard by Western Australia's supreme court. In June 2023, another woman was granted permission to collect sperm from her 29-year-old husband who reportedly died after cutting an artery on a broken window pane.
Broadgate Legal
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