A Western Australian judge has granted a newly widowed woman
the right to retrieve and store sperm from her dead husband, although a further court
order will be required before it can be used for any purpose.
The woman, referred to in the judgment as Ms C, had been
trying to conceive and recently started IVF treatment with her husband, before he
took his own life at the end of December. The husband, Mr C, had a history of
depression. His body was taken to the Sir Charles Gairdner Hospital where Ms C's
request to retrieve and store his sperm for future IVF treatment was refused by
doctors without a court order.
Justice James Edelman of the Supreme Court of Western
Australia held an emergency hearing late in the evening the day after Mr C's
death and granted Ms C the order she needed to obtain the sample. The judge
ruled that sperm fell under the state's Human Tissue and Transplant Act, under
which officials are allowed to remove tissue at the request of the deceased's
next of kin.
Justice Edelman said the case 'involved circumstances of extreme
urgency' and a decision needed to be made almost immediately. He called for
similar cases to be handled with 'greater speed and efficiency', and said 'in
future a hospital should be able to perform the desired procedure in a case
like this almost immediately and without an applicant being required to come to
court prior to removal'.
In 2011, a widowed woman from New South Wales, Australia, was
allowed to posthumously retrieve and cryopreserve her late husband's sperm
after he died in an accident at work. Although a lack of the husband's written consent prevented her from
using the sperm in the state, the judge awarded the widow proprietary rights in
the sperm enabling her to travel elsewhere for possible use of it in IVF
(reported in BioNews609).
Justice Edelman said the case of Ms C raised questions about
the courts' response to requests for the posthumous retrieval of sperm, but
that, on this occasion, he did not consider it necessary to define sperm as
'property' to grant the order.