Last updated 8 August 2016

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

Since 2000, there have been a number of Supreme Court cases concerning attempts by a living spouse to harvest and store gametes from a recently deceased spouse for later use in IVF procedures. These cases have had conflicting results, and no clear principles have been decided on this issue. It may be possible for a man who is critically or terminally ill to have his sperm stored so that his partner can later use it in an IVF procedure. But, according to the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (ART guidelines), a clinic can only agree to this process where the man has given clearly expressed and witnessed directions consenting to the use of his sperm, the prospective mother has received counselling about the consequences of such use, and the use does not diminish the fulfilment of the right of any child who may be born to knowledge of their biological parents.

A man who is suffering from cancer, who receives intensive treatment that may consequently damage his testicles or his ability to reproduce, may be able to have his sperm stored indefinitely before undertaking radiation treatment; but its use for fertility treatment at a later date needs to be the subject of clear, written directions. For example, in circumstances where a man dies suddenly or has been in an unconscious state for a period of time prior to dying, and has not provided such directions, the ART guidelines suggest that his gametes should not be used in an attempt to achieve a pregnancy. Nevertheless, there have been a number of recent decisions from other Australian jurisdictions that have adopted a wide interpretation of the term ‘clearly expressed and witnessed directions’, enabling the posthumous use of the gametes in circumstances where the deceased had, prior to death, indicated an intention to start a family (see RE H, AE (No 3) [2013] SASC 196).