Making a Baby After Death: Posthumous Use of Gametes

It would be many people’s idea of a nightmare – losing a partner and the ability to grow your family they way you had dreamed. Many couples will freeze gametes – sperm or eggs, or create embryos together, when one is struck by illness, with the hope of growing their family in the future. Other times, sperm will be frozen when a man has died suddenly, with his partner seeking to use the sperm to conceive in the future.

What does the law say?

The State laws differ when it comes to posthumous use of gametes (that’s using eggs or sperm after death). In Victoria, the legislation provides that a clinic can use the gametes of a deceased person in a treatment procedure if:

  1. The procedure is on the deceased person’s partner (or in some cases in a surrogacy arrangement); and
  2.  The deceased gave their written consent to the use of their gametes to be used in a treatment procedure of that kind.

In a case where the deceased person’s partner has given their written consent to the use of their gametes, it needs to have been specific consent, and the surviving partner will still need to obtain the approval of the Patient Review Panel before proceeding with the treatment.

In other States including Queensland, the ACT and NSW, the clinics rely on the National Health and Medical Research Council, which has released Guidelines about assisted reproductive treatment including using donor gametes or posthumous use of gametes.

The NHMRC Ethical Guidelines are not binding but they do provide some idea of what is expected when someone seeks treatment in these circumstances. For the use of posthumous gametes, the Guidelines provide that some consideration should be given to whether:

  • the deceased person left clearly expressed directions consenting to such use following their death;
  • the request to do so 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

The process for someone in those States seeking to use gametes from their deceased partner would be to seek initial approval from their clinic. The clinic may seek to have the matter determined in a court, as the Guidelines recommend some judicial oversight.

If you are considering using the gametes of a deceased person, you should seek advice from your clinic and lawyer. In Victoria, you can seek information from VARTA as well.

If you are planning on growing your family, with your own gametes or that of a donor, or if you are a donor, you should consider what you would like to occur to those gametes and embryos in the case of your death. There are things that you can do to make it clear to everyone involved what your wishes are.

You should also consider who owns an embryo, and who may have say over their use.

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

You can purchase my book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.

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 her 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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