Can I have a baby from my deceased partner’s sperm?

You could be forgiven for thinking the worst upon reading the title of this blog, however, the matter of using your dead partner’s sperm is actually more complicated and more common than you might think.

With the advent of new technology, our laws and legislation have had to catch up with circumstances where sperm can be collected from a deceased person for the purpose of posthumous insemination. The collection process has to happen very quickly following the person’s death, the optimum timeframe being within 24 hours.

The second part of this question is the matter of the insemination and how and who is able to use the sperm.

Why does this make people uncomfortable, what are the ethical issues, and what does the law now say about this? To understand this, we first have to look at why the ethics around sperm are so difficult.

Sperm, much like eggs, is considered by many to be special because it has the ability to be used to create life. It is distinct from organ donation. If you discuss sperm as if it’s property, then you may encounter some issues. If you can “own” sperm, then who does own the sperm? Is it the body from which it has been collected, the bereaved partner, the estate of the deceased person?

If you can’t “own” sperm, then how does a decision about who gets to use the sperm get made?

The answer likely lies somewhere in the midst of things and will also depend on where the people in question are located. Many jurisdictions deal with this issue through the framework of consent. Did the deceased person provide consent for the proposed use of the sperm? If the answer is yes and in writing then there is not much for any of us to comment on or think about. If there is no express consent though, some jurisdictions then look to whether there was implicit or implied consent.

The Law in Australia

For those of us in Australia, we have that great thing called a federation. The States and Territories each have their own legislation about how the matter of posthumous insemination is managed.

In Victoria, one of the requirements is that the deceased person has provided their written consent. This poses some concerns where the person dies unexpectedly and is not able to provide their written consent, for example, in a motor vehicle accident.

This is why in some of the cases reported by the media the people involved are traveling between states or making arrangements for sperm to be transported inter-state for the insemination process.

Individual Circumstances

This is where things start to get sticky.

Who should be able to collect and store someone’s sperm after their death? Only the deceased’s partner or spouse? How long after the death of the person should their sperm be able to be used for insemination? It may be difficult to confirm paternity after an extended period of time. If there was ever any dispute about matters such as care of the child, the paternal grandparents’ involvement or potentially matters of inheritance, how would that be resolved?

Are there implications for the welfare of the child itself?

The Law Report on Radio National discussed these types of issues on the episode aired on Tuesday 25 September 2018 – “Should dead men become Fathers?” Some people question the welfare of a child being born without a Father or without two parents. However, the position put by one of the people interviewed in this episode of the Law Report was that simply because the child does not have a Father, is not in and of itself a welfare concern.

The Law Report interviewers also spoke with Ayla Cresswell’s lawyer about the legal process involved in order to obtain an Order from the court allowing the use of the sperm. After a further court decision Ayla Cresswell now has the option to use the sperm for the purposes of insemination should she choose to do so.

This isn’t a topic that many people would think about unless they are in a position where something tragic occurs to their partner. However, if you have been thinking about this, or if this blog raises any questions for you, please contact us here at Farrar Gesini Dunn.

Millie Enbom-Goad is a solicitor in our Melbourne office.