Last updated 4 March 2025

Gametes and/or embryos can be stored (cryopreserved) for later use. The Assisted Reproductive Technology Act 2024 (Qld) (ART Act) requires gamete providers who are not donors of gametes or embryos, to consent to a specified period for which an assisted reproductive technology (ART) provider may store a gamete and/or embryo (s 17 ART Act). Unlike the legislation in some other Australian jurisdictions, the ART Act does not stipulate a limit on the period that gametes or embryos can be stored. However, the consent of a gamete provider for storage of such tissue will expire after five years if it is not renewed. In relation to donated gametes and embryos, the ART Act prohibits the use of donate gametes or embryos that were obtained/created more than 15 years ago.

Further difficult questions arise regarding the collection and use of gametes, the selection of embryos based on genetic characteristics and the status of embryos being held for future IVF procedures.

In Australia, there have been numerous Supreme Court cases concerning attempts by a living partner to harvest and store gametes from a recently deceased partner (or dying partner) for later use an ART procedure.

Most recently in Queensland, the decision of Re Cresswell [2019] 1 QD R 403; [2018] QSC 142 resulted in the Supreme Court authorising the retrieval of gametes from a deceased person and justifying this retrieval under the human tissue legislation (the Transplantation and Anatomy Act 1979 (Qld)—an Act that governs the donation and retrieval of tissue from living and deceased persons). The court held that the use of gametes, once lawfully retrieved, was a matter to be determined by ART service providers in accordance with the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2017.

Despite the decision in Re Cresswell, the ART Act now explicitly addresses posthumous conception including when gametes may be retrieved and the circumstances in which they may be used in an ART procedure. In relation to the retrieval of gametes from deceased or unresponsive persons, s 32 of the ART Act excludes the operation of the Transplantation and Anatomy Act 1979 (Qld), meaning that the retrieval of such tissue is only permitted in accordance with the provisions of the ART Act. Section 29 of the ART Act states that a ‘… gamete may be retrieved from a deceased or an unresponsive person by, or under the supervision of, a medical practitioner for use in an ART procedure for the person’s spouse’.

The ART Act further states that such a retrieval is only authorised if there is evidence that ‘… the [deceased or unresponsive] person had consented to the retrieval of their gametes for use in an ART procedure for their spouse’, or where the person ‘… had not expressly objected to the posthumous use of their gametes for use in an ART procedure for their spouse …’ and they would have likely ‘… supported the posthumous use of their gametes for that purpose’. Importantly, this allows retrieval of gametes from a deceased or unresponsive person even in circumstances where there is no prior written consent to authorise such, as long as there is at least no known objection to the retrieval of their gametes for use posthumously.

Under s 30 of the ART Act, a request to retrieve gametes from a deceased or unresponsive person can be made by a person’s spouse, or in exceptional cases, by either a member of the family of the deceased or unresponsive person, or a member of the family of the spouse (exceptional circumstances might include where the spouse is incapacitated and cannot make an informed decision about retrieval of the gametes, or cannot be contacted despite reasonable attempts to contact them).

The ART Act also specifies that an independent review body must authorise the use of gametes retrieved from a deceased or unresponsive person according to s 31(3) of the ART Act, the independent review body is required to consider:

  • whether the spouse has the capacity to consent to the procedure
  • whether the spouse has undertaken appropriate counselling
  • the best interests of any child born as a result of the procedure, including whether the:
    • spouse has the capacity to provide for the child’s emotional, intellectual and other needs
    • child is likely to have safe and stable living arrangements
  • any other matter the independent review body considers appropriate.

The meaning of ‘spouse’ is not defined in the ART Act itself. Hence it would fall to the Acts Interpretation Act 1954 (Qld) where sch 1 of this Act states that ‘spouse’ includes de facto partner and civil partner.