Legal Tip 177: Use of Your Sperm after Your Death???

Legal Tip 177: Use of Your Sperm after Your Death???


This is NSW law – not sure on the other states.

If a couple have been trying to conceive using artificial methods there may be sperm stored for later use. This sperm is only able to be used with the consent of the person it came from (usually a man!). If a person dies without giving consent this can cause problems with the spouse who may want to conceive after the death using this sperm.


The NSW legislation doesn’t require the consent to be in writing, for the man (but does for the woman) however without written consent evidence will be weak.


In a recent case Ping Yuan v Da Yong Chen [2015] NSWSC 932 the woman was able to have the sperm extracted just before the death of her husband, but was unable to use it because he, allegedly, provided oral consent just before surgery but had not provided anything in writing therefore there was no evidence of the consent other than the testimony of the wife.


Therefore if you are wanting to have children in the future it may be worthwhile putting consent in writing, and witnessed, just in case. This is especially important if you are undertaking IVF treatment.


See

Section 23(a) of The Assisted Reproductive Technology Act 2007 (NSW) ASSISTED REPRODUCTIVE TECHNOLOGY ACT 2007 - SECT 23 Use of gametes or embryos after death of gamete provider

Ping Yuan v Da Yong Chen [2015] NSWSC 932 BarNet Jade - Find recent Australian legal decisions, judgments, case summaries for legal professionals (Judgments And Decisions Enhanced)

 

The oral consent bit has me laughing...In the morgue ?...I believe the Rolling Stones had lyrics at the end of Start Me Up that sums it all up

 

Wow some of these legal tips are getting into some very niche situations... hehe.

 

Queensland woman wins right to use dead boyfriend's sperm
Queensland woman wins right to use dead boyfriend's sperm

 

Need to find me the full text for that decision...

Seems to be an authority for the proposition that if I am skilful enough in dismembering someone, then I can claim ownership of the parts afterwards.

Kinda like a gruesome version of a car smash fundraiser.

 

Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte P [2022] WASC 477
Supreme Court of Western Australia
Fiannaca J
Deceased’s body parts - the applicant had been married to her husband for nearly seven years, and they had two children, being 3 years old and 9 weeks old - the applicant was 28 years old and the husband had been 29 years old - the husband severed an artery on a broken window and bled to death very quickly - his body was placed in the State Mortuary - the applicant wished to have spermatozoa removed from her husband and stored for a later date, to be used to conceive another child, should she wish to do so - she urgently applied for an order for the removal and storage of spermatozoa and associated tissue from the body of her husband - the applicant said that she and her husband had discussed the matter after watching a documentary on the subject, and that her husband had told her, in effect, that, if he were to die, it would be for her to decide - the applicant also said that, although her husband’s mother was in no state to speak, his father had given his consent to the applicant for the procedure - held: s22 of the Human Tissue and Transplant Act 1982 (WA) empowers a designated officer for a hospital to authorise the removal of tissue from a body under certain circumstances - the relevant hospital where the State Morgue was located had not been able to identify the designated officer - previous decisions of the Court were authority for the proposition that the Court has jurisdiction to make an order of the type contemplated by s22, under either s22 itself, or under O52 rr 2 and 3 of the Rules of the Supreme Court 1971 (WA) in conjunction with s22 - the Court did not consider that those decisions were plainly wrong, and so it was required to follow them - the Court was satisfied that (1) the husband’s dead body had been brought into the hospital containing the State Morgue; (2). spermatozoa are "tissue" within the meaning of s22, as they are a substance that can be extracted from the human body; (3) the proposed removal of the spermatozoa and associated tissue was for "medical or scientific purposes"; (4) during his lifetime, the husband had consented to the removal after his death of spermatozoa from his body for the purpose of the applicant using it to assist her to become pregnant, and he had not revoked the consent before his death; (5) further and in the alternative, there was no reason to believe that the husband had expressed an objection to the removal of spermatozoa from his body after his death for the purpose of the applicant using it to assist her to become pregnant; (6) the "senior available next of kin" (that is, the applicant) consented to the removal of the spermatozoa; and (7) as the husband’s death was a reportable death, the Coroner was aware of the death and consented to the procedure - the orders sought should be made - this case should also be brought to the attention of the Minister with a view to ensuring that hospitals have procedures in place to enable an authorised officer to deal with these sought of requests expeditiously.
Re Section 22

 

imagine severing an artery on a broken window and dying from it