Sandy Rizkallah of our litigation department and James Catlin of Counsel recently acted in a very unusual case. It involved obtaining the sperm of a dying man.
When we met our client, her partner of three years was unconscious and dying; from complications related to an unsuccessful suicide attempt. She hoped he could still father her child.
Under the Assisted Reproductive Treatment Act 2008 (Vic), a deceased man’s sperm can be used if:
- the procedure is requested by his partner;
- it’s approved by the Patient Review Panel;
- the living partner gets counselling; and
- the deceased has given written consent.
In this case, consent was absent.
A ruling from 1998, stated that extraction and preservation of sperm was allowed, without the deceased’s written consent. But, when the defacto partner sought to use it, the attorney general withheld approval. A court later found there was sufficient reason for consent and it was given.
Calling on this precedent, 48 hours before the death of our client’s partner, the Supreme Court’s Justice Keogh approved an order authorising sperm removal, for storage at an IVF clinic. Our client was also given the right to apply to use it one day.
We certainly live in interesting times.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from marshalls+dent+wilmoth and other relevant experts.