Some peo­ple plan a fam­i­ly in advance. Oth­ers may have it at the back of their minds for some time.

IVF has become a far more acces­si­ble ser­vice in the last decade and what hap­pens to frozen embryos if a cou­ple sep­a­rates is entire­ly depen­dent on the nom­i­na­tion they make at the time they sign the con­tract to cre­ate said embryos.

How­ev­er, very few peo­ple sign con­tracts in rela­tion to the use or reten­tion of gametes (human sperm or human ovum) and there are asso­ci­at­ed com­pli­ca­tions with regards to their use. Amy Pun of our office takes a look at the law relat­ing to the use of gametes as set out in the Assist­ed Repro­duc­tive Tech­nol­o­gy Act 2007 (NSW) (‘the Act’) and what hap­pens when that does not apply.

The Leg­is­la­tion

The rel­e­vant sec­tions of the Act are Sec­tions 19 and 23 which state that:

19 ​“An Assist­ed Repro­duc­tive Tech­nol­o­gy (‘ART’) provider must not pro­vide ART treat­ment to a woman using a gamete except with the con­sent of the gamete provider and in a man­ner that is con­sis­tent with the gamete provider​’s con­sent in rela­tion to:
(a) the ART treat­ment or class­es of ART treat­ment for which the gamete may be used, and
(b) the woman or class­es of women who may receive ART treat­ment using the gamete.
23 ​“An ART provider must not pro­vide ART treat­ment to a woman using a gamete if the ART provider knows or believes on rea­son­able grounds that the gamete provider is deceased, unless:
(a) the gamete provider has con­sent­ed to the use of the gamete after his or her death, and
(b) the woman receiv­ing the ART treat­ment has been noti­fied of the death or sus­pect­ed death of the gamete provider and the date of death (if known), and
(c) the woman receiv­ing the ART treat­ment has giv­en writ­ten con­sent to the pro­vi­sion of the ART treat­ment using the gamete despite the death or sus­pect­ed death of the gamete provider.

Recent Cas­es

In the mat­ter of Ping Yuan v Da Yong Chen[1], the hus­band rup­tured a major blood ves­sel. He con­sent­ed to surgery and remained con­scious until a gen­er­al anaes­thet­ic was admin­is­tered for the pur­pos­es of the oper­a­tion. The med­ical prac­ti­tion­er respon­si­ble for the hus­band’s care advised he only had hours to live. The wife stat­ed that before the hus­band lost con­scious­ness, he had said to her that he want­ed to have one more child with her.

An urgent ex parte appli­ca­tion was made by the wife for an order to facil­i­tate the col­lec­tion of sperm from the husband.

The Act was inap­plic­a­ble in this case as it dealt only with per­sons who donate gametes by con­sent. How­ev­er, Jus­tice Fagan estab­lished that the extrac­tion and stor­age of sperm was con­sid­ered (minor) ​‘treat­ment’ for the pur­pos­es of s40 of the Guardian­ship Act 1987 (NSW), and that the wife sat­is­fied the require­ments of s33A(4)(b) of the Guardian­ship Act as a ​‘per­son respon­si­ble’. A dec­la­ra­tion was made that the med­ical prac­ti­tion­ers could law­ful­ly under­take the col­lec­tion. The Court stated:

“It appeared unlike­ly that Mr Chen would recov­er con­scious­ness to be able to give con­sent him­self. What he had said to the Plain­tiff, as quot­ed at [4], did not amount to con­sent for such a pro­ce­dure. The urgency of col­lect­ing the sperm, if it was to be done, was con­sid­er­able. I was informed that posthu­mous extrac­tion would be pos­si­ble but with dimin­ished prospects of via­bil­i­ty, in direct rela­tion­ship to the length of delay after death.”

The extrac­tion was car­ried out short­ly after the Court’s dec­la­ra­tion and Mr Chen died 45 min­utes later.

Despite the col­lec­tion hav­ing occurred, the hus­band’s con­sent had not yet been estab­lished for the pur­pos­es of using the sperm (either pur­suant to s19 of the Act where the part­ner is still alive, or s23(a) of the Act where the part­ner has passed away and con­sent is required for use after death).

The wife is there­fore unable to use or deal with the semen and she is not to remove it from the con­trol of the Fer­til­i­ty Clin­ic until fur­ther order of the Court. The date for a sub­stan­tive hear­ing had not yet been list­ed as at the time of writing.

In the mat­ter of MAW v West­ern Syd­ney Area Health Ser­vice[2] the Court was also required to deter­mine if it had juris­dic­tion to autho­rise a rel­e­vant sur­gi­cal pro­ce­dure in the absence of con­sent by the patient.

In that case, the hus­band was in a motor vehi­cle acci­dent, suf­fered brain dam­age and was on life sup­port. He was in immi­nent dan­ger of dying. The wife wished to pre­serve his semen so that she could pos­si­bly have a child in the future. How­ev­er, the cou­ple had had no plans to have chil­dren at the time of acci­dent and the Court held that its parens patri­ae juris­dic­tion did not extend to autho­ri­sa­tion of this type of non-ther­a­peu­tic sur­gi­cal procedure.

In the mat­ter of Joce­lyn Edwards; Re the Estate of the late Mark Edwards[3], the cou­ple had dif­fi­cul­ties con­ceiv­ing. The hus­band had con­cerns that he had a ter­mi­nal ill­ness and the wife stat­ed that on Valen­tine’s Day in 2009, her hus­band had said to her:

“If some­thing hap­pens to me I would want a part of me to be here with you. Our baby will be a part of us — our lega­cy even after we are both gone. She will be the bond that unites our fam­i­lies. The bond between [their two chil­dren]. If we find out I have can­cer I want to make sure we have our baby before I am unable to have one, before I do any chemo. Please promise me you will still have our baby.”

Although the hus­band was cleared of can­cer, he was killed in a work­place acci­dent in August 2010, the day before the cou­ple was due to attend an appoint­ment at an IVF clin­ic to dis­cuss their pre­ferred treat­ment option and sign con­sent forms to com­mence treatment.

Jus­tice Simp­son made orders enabling the extrac­tion of sperm from the hus­band’s body to be pre­served pend­ing fur­ther order.
The wife sought orders from the court for the release of the sperm held under stor­age and for per­mis­sion to use the sperm in the pro­vi­sion of ART to her. The wife sub­mit­ted that she was enti­tled to pos­ses­sion of her hus­band’s sperm because she was the admin­is­tra­tor of his estate.

Jus­tice Hulme grant­ed the appli­ca­tion not­ing that the appli­ca­tion was for ​‘release’ of the sperm, and not for its use in NSW. Pur­suant to s23(a) of the Act, the wife can­not law­ful­ly use the sperm for ART in NSW. It remains open for the wife to trav­el to anoth­er State or Ter­ri­to­ry or over­seas to under­go treatment.

It was specif­i­cal­ly stat­ed in the judg­ment that the release of the sperm to the wife by the ART provider was held not to con­tra­vene pro­vi­sions pro­hibit­ing ART providers from sup­ply­ing gametes with­out the con­sent of the gamete provider and export­ing or caus­ing a per­son to export gametes from NSW (s22 of the Act).

What you should do

The process of IVF is now more estab­lished and is reg­u­lat­ed by the con­tracts signed by the par­ties pri­or to the time of the cre­ation of the embryo.

How­ev­er, the use of gametes appears to remain a live issue for the Courts.

While Courts have seemed will­ing to urgent­ly extract gametes from both dying and dead part­ners with­out their con­sent, and in par­tic­u­lar in cir­cum­stances where the partner/​spouse is an admin­is­tra­tor of the estate, the Court may even pro­vide that partner/​spouse with pos­ses­sion of the gamete, the actu­al use of the gamete is still pro­hib­it­ed by the Act in NSW.

While it may seem unro­man­tic, we con­sid­er it impor­tant for par­ties to obtain writ­ten con­sent from their partner/​spouse to use their sperm or egg (even includ­ing con­sent for its use after death) so as to clar­i­fy their inten­tions for the pur­pos­es of the Act.