Conception, Consent and Death

I’ve been thinking a lot about death lately. A few things have led to this – watching Old People’s Home for 4 Year Olds on the ABC, and donating my eggs again. Life, death, and taxes – there are few certainties in life, but those are three.

So, what has conception, consent and death got to do with egg donation? You’d be forgiven for feeling confused. The fact is, that while I’m donating my eggs with the intention that intended parents can grow their family as they choose, the law in Victoria is such that in the case of my death, my consent to the conception and use of my gametes lapses. There are specific and limited circumstances where the intended parents will be able to use the embryos created with my eggs after my death, but most people do not talk about these things when preparing to grow their family or going through fertility treatment.

If you are exploring surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.

Regardless of whether you are fertile, needing the help of a fertility clinic, are a donor or a surrogate, you should consider what your thoughts are, and those of everyone else involved, were one of you to die. This includes whether you have embryos or gametes frozen already, or not.

It’s important to discuss the issue of what happens and under what circumstances the gametes and embryos are to be used, including should one of the team die before your family is complete.

Some things to consider:

  1. How do you feel about your gametes being used after your death? Do you have religious or other philosophical values that impact your views?
  2. How does your family feel about babies being created and born after your death? Have you talked it through with them?
  3. Have you thought about the interests of future children who might be conceived and born from your gametes and after your death? Read more about the considerations of donor conception, where donor-conceived people do not have access to their donor.
  4. Have you discussed your views with your partner, the intended parents, your family, and the other parties in the arrangement?
  5. Have you made your wishes clear in a written document?

My advice for anyone considering growing their family or helping someone to grow theirs is to consider the above issues, and write down your wishes. When doing so, you should make the instructions specific, naming the people involved and who will be impacted by the decision. It is not enough to say “I consent to my embryos being used after my death” – you must give specific details about who might be using the gametes and in what circumstances. The more specific your written instructions, the better. Some example statements are below. If you are writing such a statement, I suggest that you include your full name and address, and have it signed, dated and witnessed. And then store it somewhere safe, such as with your Will and other important documents. Even better, discuss it with your family and make sure they know what your wishes are.

If you have donated to more than one family, be sure to specifically address each donation and the gametes and your wishes for their use. And make sure to discuss your wishes with recipient intended parents.

“I consent for [insert full names of your partner or the intended parent/s] to use the embryos created with my gametes and stored at [name of clinic] in the event of my death.”

“I do not consent for [insert full names of your partner or the intended parent/s] to use the embryos created with my gametes and stored at [name of clinic] in the event of my death.”

A word of caution – while making your wishes clear and writing them down is important, it does not guarantee that the intended parents or your partner will be granted approval to use the gametes or embryos if you die, even if you have consented. It does, however, provide some clear evidence of your intentions and this can be used to determine the best use of the gametes in the event of your death.

Whilst we’re on the subject, have you got your Will sorted? Is it up to date? Does it contemplate future children who are yet to be conceived or born either through donor conception or surrogacy? Best get it sorted! If you need a suggestion for a lawyer, get in touch – I don’t do Wills, but I can suggest some great lawyers who do. You can also listen to Adelle on the Podcast – she’s a wills and estates lawyer too!

You can read more about posthumous use of gametes (which is about using embryos and eggs and sperm after someone dies) and ownership of embryos.

Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.

You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Podcast. You can also book in for a consult with me below.

Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

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