A 62-year-old woman has been given permission by the Western Australian supreme court to remove sperm from her dead husband for possible use in posthumous fertilisation.
The woman made an urgent court application after the death of her 61-year-old husband late last year.
Her husband’s body was taken to Sir Charles Gairdner hospital, but the court heard the woman was forced to apply for an order after the hospital did not promptly make a “designated officer” available to handle her request for sperm to be removed from her husband’s body and stored while it still remained viable.
Hearing the application the next day, the court heard the couple – whose names cannot be published for legal reasons – had two children together, however both children were killed in separate accidents.
Since the deaths of their children, the couple had spoken about having another child, but a fertility expert advised the woman she could not conceive due to her age.
Testing of the man’s sperm found it remained viable.
The court heard that a 20-year-old cousin has volunteered to be a surrogate for the couple in an IVF procedure, but they lived overseas and the woman said she believed the couple would have been legally required to live in the country for a period of time before going ahead.
Work commitments, the pandemic and the death of the woman’s mother-in-law meant the couple missed the opportunity to move.
In granting the application, judge Fiona Seaward allowed the woman to remove the sperm but not to use it, as that would require a separate court order.
“These orders are limited to permitting the removal of the spermatozoa and do not constitute authorisation for the spermatozoa to be used by the applicant, and do not in any way consider whether the applicant can or could meet any statutory criteria in that regard,” she said.
Western Australia does not currently allow posthumous fertilisation. To take the next step and use the material, the woman must apply to have it transferred to another jurisdiction that allowed the procedure.
In her decision, Seaward also reprimanded the hospital for failing to make a “designated officer” available to the woman in a timely manner, which would have avoided the needed for a hasty court application.
“It is disappointing that it appears that, once again, an applicant has been required to attend court on an urgent basis and in traumatic circumstances to obtain an order that may, if the designated officer considered all criteria to be met, be granted in a faster and more streamlined manner,” she said.
