Last updated 27 August 2019
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.
The retrieval of gametes following a person’s death and the use of those gametes in an assisted reproductive technology (ART) procedure are regarded as distinct legal/policy issues. Where a man has not left express consent for the posthumous retrieval of his sperm for reproductive purposes following his death, there is a question as to whether retrieval of sperm in such circumstances is lawful. The earlier Queensland cases on this point were conflicting as to whether sperm could be lawfully retrieved following a man’s death. More recently, the Queensland Supreme Court has determined that the posthumous retrieval of a man’s sperm for the purpose of using the sperm in a reproductive procedure may be permissible under the Transplantation and Anatomy Act 1979 (Qld). This is because removal of the sperm is for a ‘therapeutic purpose’ (for use in an ART procedure) under the Act. However, it should also be noted that the ART guidelines set out a number of requirements in determining whether the retrieval of sperm is permissible under the guidelines, including a requirement that the proposed collection and storage has been approved by an appropriate court authority. The subsequent use of the sperm for an ART procedure must also comply with the ART guidelines.
In relation to the posthumous use of a person’s stored gametes or embryos in an ART procedure, the ART guidelines distinguish between circumstances where a person has left clearly expressed directions about that use, and circumstances where no such directions have been provided by the deceased person. Unless prohibited by law, the ART guidelines state that clinics may facilitate the posthumous use of stored gamete or embryos in an ART procedure, where the deceased left clearly expressed directions consenting the use of their gametes following death, as long as the request to use the gametes/embryos has come from the spouse or partner of the deceased person, and not from any other relative and the gametes are intended for use by the surviving spouse or partner. If the deceased did not leave clearly expressed directions concerning the use of their gametes/embryos following their death, in accordance with the law, clinics may facilitate the posthumous use of stored gametes/embryos for an ART procedure, if:
- the request to do so has come from the spouse or partner of the deceased or dying person, and not from any other relative
- the gametes are intended for use by the surviving spouse or partner for the purposes of reproduction
- there is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner, or at the very least, there is no evidence that the deceased or dying person had previously expressed that they do not wish this to occur
- the surviving spouse or partner provides valid consent.
In addition, the ART guidelines require in all cases where clinics facilitate the posthumous use of gametes or embryos (whether or not clearly expressed directions were left by the deceased) that the clinic ensures that:
- sufficient time has passed so that grief and related emotions do not interfere with decision making
- the surviving prospective parent (the spouse or partner) is provided with sufficient information to facilitate an accurate understanding of the potential social, psychological and health implications of the proposed activity for the person who may be born
- the surviving prospective parent (the spouse or partner) has undergone appropriate counselling
These requirements will, for example, apply in circumstances where a man who is critically or terminally ill, has requested to have his sperm stored so that his partner can later use it in an IVF procedure. Or alternatively, where a person dies unexpectedly and the surviving spouse or partner seeks to retrieve the deceased’s gametes for use in an ART procedure. The relevant parts of the ART guidelines will apply, depending on whether the deceased left clearly expressed directions about the use of their gametes following death.