A 42 year old woman from Perth recently won the rights to use her deceased partner’s frozen sperm to have his baby. The woman who has been referred to as GLS launched the civil proceedings in the Australian Supreme Court last year after the death of her partner in 2016.
Her partner who has been referred to as Gary in court documents, suffered from a heart attack in January of 2016 and was pronounced dead at the Royal Perth Hospital a couple of days later. Gary was 53 years old when he passed away.
GLS and Gary had been together for over five years and had previously discussed freezing Gary’s sperm in 2014 because of his age and the risk of an early death.
In February 2016 following his death, GLS had contacted a fertility centre specialist who went to the mortuary that Gary was being kept at and extracted his sperm. The specimen was placed in frozen storage at a fertility clinic.
Late 2016, GLS was able to obtain permission from Gary’s eldest adult son to use his deceased father’s sperm under the condition that GLS doesn’t contact Gary’s family for emotional or financial assistance. However the then CEO for the WA Health Department prohibits the use of eggs or sperm from deceased providers for artificial fertilisation as published in 2004.
Lawyers that were acting for GLs contacted the Reproductive Technology Council of Western Australia in July 2017 to request for the approval to move Gary’s sperm to the ACT as they do allow artificial fertilisation from deceased providers.
When the RTS denied GLS’s request in October, she escalated the case to the Supreme Court arguing that she was entitled to have the sperm transferred to the ACT. Lawyers for the Western Australia Health Department argued that in circumstances where participants were alive, extracted eggs or sperm could be transferred out of Western Australia without the approval from the RTC.
Their argument was that if the sperm or egg was extracted from someone who was deceased they have no control of how it is used and therefore it is a donation and belongs to the RTC.
The Supreme Court dismissed this argument and point of view stating that since Gary’s sperm had been extracted after his death that it was not a donation and that GLS was entitled to have it moved to where she sees fit. The court also stated that is was not their role to determine the validity of the WA Health Department report that was published in 2004.