The concept of sperm ownership is not new; it has been the topic of discussion for over a decade and central to a number of court cases where women have fought for the rights to their deceased partner’s reproductive tissue. Such landmark cases have sparked controversy with a number of commentators claiming it is unethical to intentionally raise a child without a father, and in most cases, without the consent of the father. Amongst the discussion the question commonly raised is, who the legal owner of the sperm is?
Is sperm property?
The question of whether sperm, or any other reproductive tissue is considered property has been raised in a number of cases before the Australian Courts.
A recent Western Australian decision confirmed the concept that sperm, like any other tangible possession, is capable of being possessed and therefore can be classified as property.
Generally, it is considered that there is no property in a human body. The exception to this is where there has been work and skill done on the body part that is involved in litigation.
In Re the Estate of the late Mark Edwards, the Court held that the deceased did not have property in his sperm whilst he was alive and he did not apply work or skill. Therefore it did not form part of his estate. It was held that the doctors and technicians applied work and skill during the course of extracting and preserving the sperm. However, as they were acting on behalf of the applicant, the partner of the deceased, the doctors and technicians did not obtain any property rights. In this case, the partner of the deceased was entitled to possession of the sperm.
Right to sperm
Obtaining the rights to a deceased partner’s sperm is a complex and difficult process generating legal and ethical concerns. Legislation surrounding the extraction of sperm after death is typically governed by the laws on organ donation. It is considered a criminal act to interfere with a deceased body without lawful justification. Any removal of a tissue may be authorised for ‘therapeutic purposes or for medical or scientific purposes’ The Court has interpreted, through the number of cases, that sperm can be classified as ‘tissue’ and reproduction can be categorised as ‘medical purposes’.
Given this, doctors must obtain consent from the court before proceeding, even if the deceased partner provided written consent prior to his death. They must be satisfied that the deceased would have not objected to the extraction of their sperm had they been alive.
Once a decision has been made by the Courts as to whether the sperm can be extracted from the deceased, a separate application will need to be made as to whether the sperm can be used for in vitro fertilisation.
The Courts take into account a number of factors when considering such applications, with the paramount concerns being the welfare and interest of the child born through IVF and the deceased’s intentions.
Occasionally, consent of the deceased can be inferred by their actions or words of the deceased. For example, they may have discussed their wishes for children in the future with family and friends or they may have already begun the process of IVF. If consent was provided prior to death, this holds substantial weight in support of the application. For example, a provision in a deceased’s Will can attest to his wishes of the treatment and use of his reproductive tissue.
Application in South Australia
The Assisted Reproductive Treatment Act 1988 (SA) (‘the Act’) places a significant restriction on a woman’s right to her deceased partner’s sperm for reproductive purposes. Under the Act, the following requirements apply:
1. The applicant must provide evidence that she was, or appeared to be infertile;
2. That prior to the deceased dying, his semen was collected;
3. That prior to the deceased dying, he consented to the use of his semen after his death in the provision of the proposed assisted reproductive treatment; and
4. The assisted reproductive treatment is provided for the benefit of a women who, immediately before the death of the donor, was living with the donor on a genuine domestic basis.
However, an applicant can apply to the Minister for Health and Ageing (‘the Minister’) for an exemption under this Act. This was considered in Re H, AE (No 2). In this case, the Court stated that the sperm was not property of the deceased or his estate and the fertility clinic exercised work and skill for in accordance with an order of the Court and not for their own purpose. It was the Court who retained the control of the use of the deceased’s sperm despite the fact that the Court determined the applicant to be the only person entitled to same.
However, as the applicant did not satisfy the requirements under the Act (sperm extracted after death) and given that no registered person operating in South Australia would undertake the in vitro fertilisation, the Court suggested that the applicant seek an exemption under the Act.
The applicant applied to the Minister to vary the requirements under the Act to enable in vitro fertilisation in South Australia. However, the request was refused and therefore the procedure could not take place in South Australia. The Court granted the applicant an order to use her deceased partner’s sperm in a clinic in the Australian Capital Territory.
Importance of Estate Planning
This is another reminder about the importance of ensuring your estate planning is up to date. If you and your partner are considering having children in the future and/or have discussed fertility procedures, you ought to take steps to record your wishes in the event that one of you unexpectedly passes away.
Please contact one of our friendly staff at Bambrick Legal if you wish to discuss your estate planning generally or require further information as to reproductive rights.
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