Making a Baby After Death: Posthumous Use of Gametes
Posthumous is strange word that means ‘after death.’ Posthumous use of gametes refers to the use of eggs, sperm or embryos after the death of one of the gamete providers (ie. the person who provided the eggs or sperm).
It would be many people’s idea of a nightmare – losing a partner and the ability to grow your family the 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 someone has died suddenly, with their 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. In Victoria, the legislation provides that a clinic can use the gametes of a deceased person in a treatment procedure if:
- The procedure is on the deceased person’s partner (or in some cases in a surrogacy arrangement); and
- The deceased gave their written consent to the use of their gametes to be used in a treatment procedure of that kind.
In the case where the deceased person’s partner has given their written consent to the use of their gametes, the direction must 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 guidance of what is expected when someone seeks treatment in these circumstances. For the use of posthumous gametes, the Guidelines provide that 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.
You can read about one woman’s journey to have a baby after the death of her partner in that of Ellidy Pullin, who was able to have a baby after her husband Alex died suddenly.
If a surviving partner wishes to have the sperm of their recently deceased partner retrieved, this can happen within hours of the death. There is a very small window after someone has died when sperm can be retrieved from their body. This can sometimes happen without lawyers involved, and the best place to start would be with the hospital and doctors where the person rests.
Retrieving sperm and having it stored may be the least challenging aspect. Using the sperm can be a lot trickier. You should seek legal advice to navigate how to use the sperm (or any other gametes stored) and your options within your state.
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.
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