Australian court allows 62-year-old woman to have dead husband's sperm collected

A 62-year-old widow has received permission from the Western Australia Supreme Court to have her deceased husband's sperm extracted.

The woman – named only as Ms H – presented evidence that she and her husband had been trying to have another child since 2019, after both of their adult children had died. The ruling allows the sperm to be collected and stored, but not to use them in treatment, as posthumous gamete use is currently illegal in Western Australia.

'The court has no reason to believe that the deceased person had expressed an objection to the removal after death of the spermatozoa,' Judge Fiona Seaward stated in the court order. 'If it did not happen urgently after the death of Mr H, [it] would forever preclude the applicant from making use of Mr H's spermatozoa in an attempt to conceive a baby.'

Mr H was 61 when he died. The couple had sought fertility treatment in 2019 and found that the man's sperm were still viable. Ms H's cousin, who lives in the Philippines, was willing to act as their surrogate, but their plans were delayed by both the legal process of overseas surrogacy and the COVID-19 pandemic.

In order to use the sperm, Ms H will next need to make an application to the Reproductive Technology Council, which will decide whether the sperm can be exported to another jurisdiction where it could legally be used in fertility treatment. In some previous cases, permission has been granted for gametes to be moved to other Australian states such as Queensland where they can be used posthumously.

Roger Hart, professor of reproductive medicine at the University of Western Australia told ABC about some of the practical and ethical challenges Ms H may have to face if she pursues having a child using the sperm: 'The woman is going to have to use donor eggs because she's 62 and she's also planning to use a surrogate ... It's posthumous use of the sperm, so the child will never know its dad.'

'Sperm from older men, whether it's posthumous, or from fresh sperm does have a higher rate of chromosome abnormalities ... which pose a greater risk of the child born,' Professor Hart said, adding that Ms H should receive counselling about all of these issues.