Posthumous conception usually occurs when a widow attempts to access her late partner’s sperm to use in Assisted Reproductive Treatment (ART) procedures.
Using the cryopreserved sperm of a deceased man is a controversial area. There are issues relating to autonomy and whether the deceased man had consented to his sperm being used, posthumously, to produce a child that he will never know.
An individual’s consent to the use of his or her body parts for reproductive purposes can be imperative in posthumous conception cases. For example s23 Human Tissue Act (1983) (NSW) gives a designated officer of the hospital authority to remove tissue from a deceased person’s body for therapeutic or medical purposes if the officer is satisfied that the deceased person had given written consent during his or her lifetime. Where there is no consent and the designated officer is satisfied that the deceased person had not objected to removal of tissue from his or her body and the senior next of kin consents to the removal and no other senior next of kin objects to the removal, the designated officer can authorise the removal of the tissue.
This means that it is possible to extract the sperm from the deceased’s body even where there is no written permission. This is important as while someone who has a terminal disease, may make plans for the future and execute a written consent, a man who dies suddenly in a tragic accident may not have turned his mind to this issue but may have wanted his widow to conceive his child.
Even though the reproductive tissue can be removed without the consent of the deceased the operation of the law relating to ART prevents that reproductive tissue being used in an ART procedure without the consent of the deceased in NSW.
s23 Assisted Reproductive Technology Act (2007) (NSW) states that an ART provider must not use the gamete of a deceased man in ART treatment unless the gamete provider has consented to the use of his gamete after his death. This can be a very difficult position for the widow if there is no written consent as she would be unable to use the extracted sperm in NSW.
The NSW Department of Health reviewed the Assisted Reproductive Technology Act in 2013 and examined the issue of donor consent in posthumous conception cases. The discussion paper noted the anomaly between the two pieces of legislation but considered that this was because the Human Tissue Act also dealt with the removal of other non-reproductive body parts. They considered that it was the new life element of reproductive body parts as opposed to body parts used in a transplant to save a life, which caused the requirement for extra consent.
The discussion paper noted that there is nothing in the Assisted Reproductive Technology Act to prevent a widow or a defacto partner transferring the gametes interstate in order to use them. The Assisted Reproductive Technology Act only regulates ART clinics not individuals thus an individual can export gametes without the donor’s consent.
In the ACT, the ART laws do not require written consent for a widow to use the sperm of her deceased partner. This is one option for people in this difficult situation. It is however unsatisfactory, it is likely that there will be further calls for law reform in this area.
If you are in a position where you are considering posthumous conception we suggest that make an appointment to come and see us and we can assist you to draft the appropriate consent forms.
 s23 (1) (a) (ii) Human Tissue Act (1983) (NSW).
 s23 (3) Human Tissue Act (1983) (NSW).
 NSW Health Department, Assisted Reproductive Technology Act 2007 Statutory Review Discussion Paper (2013:NSW Government).
 Human Tissue Act (1983) NSW) and Assisted Reproductive Technology Act (2007) (NSW).
 (1983) (NSW)
 NSW Health Department, above n30 at 23.
 (2007) (NSW)
 NSW Health Department, above n30 at 22.
 (2007) (NSW)