Catherine Henry Lawyers’ health and medical law team helped a client win a case in the NSW Supreme Court to recover her husband’s frozen reproductive tissue from cryogenic storage to potentially conceive the child they both desperately wanted.
In June 2019, our client successfully applied to the NSW Coroner to have sperm removed from her husband when he died. She stored them with an assisted reproductive technology provider at its Sydney facility. When she wanted to transport the sperm, at her cost, to a facility in the ACT, the provider refused, saying she had to get a court order.
The provider said it would be in breach of the Assisted Reproductive Technology Act 2007 (ART Act) as to proceed without a court order no consent had been obtained from our client’s husband or court order for any storage to take place. We argued on behalf of our client that there was clear consent and direction from her to permit the storage but the provider still refused.
Our health lawyers’ successful argument
The NSW Supreme Court granted our client permission to transport her dead husband’s sperm from one storage facility to another interstate facility in December 2021.
The court and the IVF provider acknowledged our client’s right to possession. However, the court said the gamete provider could only be the person the reproductive tissue was removed from.
To further clarify the law, we argued that our client satisfied consent requirements as the gamete provider. She legally owned the sperm and provided the stored samples.
In its judgement in favour of our client, the court relied on the principle established in another case – that transporting the sperm interstate was not exporting or supplying the sample which is prohibited under the law (see Noone V Genea Ltd [2020] NSWSC 1860).
What laws cover assisted reproductive technology and IVF in NSW?
Assisted reproductive technology in NSW is governed by the Human Tissue Act (HTA) and the Assisted Reproductive Technology Act 2007 (ART Act). Generally, the NSW Supreme Court must grant two orders – one for the removal and storage of reproductive tissue and the second to use the reproductive tissue.
Section 24 of HTA broadly allows tissue to be removed from a deceased person if they or the ‘senior available next of kin’ have consented. Sections 21, 22 of the ART Act prevent the export, supply, or use of reproductive tissue, often sperm, without the deceased person’s consent. Section 23 requires written consent for the use of the sperm.
IVF and other assisted reproduction laws in NSW need to change
Our firm believes NSW assisted reproduction laws are onerous and need to change to make it easier for women to use their partner’s sperm for posthumous IVF treatment. If tissue is appropriately removed from a person who has died, it should be the property of the deceased person’s next of kin and not an IVF provider.
Despite this judgement and similar court rulings, assisted reproductive technology providers are continuing to force people to go through the costly and time consuming process of obtaining orders for possession. Decisions are made on a case-by-case basis often resulting in different outcomes.
There should be a national law covering such situations. It makes no sense that a widow regarded as having the legal right to the reproductive product(s) is not able to regain possession of it post-death. The relevant property rights should vest in the person who directed the extraction and storage of gametes (ova or sperm).
Do you need legal advice or representation regarding IVF or other assisted reproduction?
Catherine Henry Lawyers specialises in health and medical law, including IVF and reproductive health law. Our expert lawyers have a deep understanding of health and medical legislation. Some of our lawyers have worked as health practitioners. They also have support and advice from in-house clinical advisors who still practice in the health system.
This means our team can more quickly get to the crux of the issue and know which questions to ask. It is why we are a leading health and medical law firm in NSW.
For a confidential discussion about your IVF or reproductive health matter please contact our team today. Call us on 1800 874 949 or fill in the form below and we will be in touch.
