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The Supreme Court of Western Australia granted a 62-year-old woman permission to remove sperm from her husband’s dead body for use in posthumous fertilization.
The woman filed an urgent court application following the death of her 61-year-old husband late last year. The dead body of her husband was taken to Sir Charles Gairdner Hospital; however, the court was informed that the woman was forced to apply for an order after the hospital promptly failed to make a “designated officer” available to look into the woman’s request of removing and storing the sperm from her husband’s dead body while the sperm was still viable.
The couple had two children, both of whom died in separate accidents
During the hearing of the application, the court learned that the couple, whose names were not published for legal reasons, had two children, both of whom tragically died in separate accidents.
Following the deaths of their children, the couple discussed having another child; however, a fertility expert advised the woman that she would be unable to conceive due to her age. When the man’s sperm was tested, it was discovered that it was still viable.
The court was also informed that the couple’s 20-year-old cousin had volunteered to undergo IVF and become a surrogate for them. However, the couple was living in another country, and the woman stated that she believed the couple was required to legally live in the country for a certain period before proceeding with the surrogacy.
However, due to the pandemic, work commitments, and the death of the woman’s mother-in-law, the couple missed the opportunity to relocate. While ruling on the application, Judge Fiona Seaward allowed the woman to remove the sperm but not use it because that would require a separate court order.
“These orders are limited to permitting the removal of the spermatozoa and do not constitute authorization for the spermatozoa to be used by the applicant, and do not in any way consider whether the applicant can or could meet any statutory criteria in that regard,” the judge said.
Posthumous fertilization is currently prohibited in Western Australia
Posthumous fertilization is currently prohibited in Western Australia. To proceed with the procedure, the woman must apply for the case to be transferred to another jurisdiction that permits it.
In her decision, Seaward also chastised the hospital for failing to make a “designated officer” available to the woman promptly, which would have prevented the woman from filing a hasty court application.
“It is disappointing that it appears that, once again, an applicant has been required to attend court on an urgent basis and in traumatic circumstances to obtain an order that may, if the designated officer considered all criteria to be met, be granted in a faster and more streamlined manner,” she said.
