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Monday, December 5, 2011

Sperm Retrieval for Conception after Death, in Australia


In August 2010, Mark Edwards was killed in a workplace accident, just days before he was scheduled to store his sperm prior to chemotherapy.  Edwards had cancer and was afraid he might die before he and his wife had a child.  According to evidence his wife supplied in court, he had asked that she have a child even if he died, so that the child could be their legacy.
Immediately after his death, Mrs. Edwards obtained court permission to direct the retrieval of his sperm. She initiated a second court action to have the sperm turned over to her.  She attempted to secure the sperm using a particular legal theory, namely that she had entitlement to the sperm in her role as the decision-maker in regard to the disposal of her husband’s body.  The court did not accept this approach.

The court did, however, give her possession of the sperm on another legal theory, namely that (a) no one else wanted it, so there was no dispute on that level, and (b) it could be construed as her property.  However, even that was not the sole issue, because it was pretty clear that Mrs. Edwards wanted to use the sperm in order to have a child, but the law of New South Wales threw up roadblocks against her using the sperm of a dead man, for such reasons as his lack of consent.  The Court nevertheless decided it could release the sperm to the woman, without having to establish her exact plans.  The court also noted that she might use the sperm to have a child legally in other Australian jurisdictions and abroad.

Reproduction after death has been possible since the first successful freezing of sperm, ova, and embryos. Storage of ovarian tissue and testicular tissue may open the door to this kind of post-humous reproduction as well.  I don’t know what the circumstances are in Australia, but I hope they will prepare themselves for children not only born after the death of their parents but conceived after the death of their parents.  One of the most important questions here is whether such children are entitled to the same benefits as children conceived while their parents are still alive.  After all, I don’t know if Mr. Edwards had a will, but its outcome could change if a child were born, say, 3 or 4 years after his death.  It’s also an open question as to what entitlements might be owed the child, if any, from other sources, such as benefits from the government to which Mr. Edwards’ children are entitled.  This issue has been roiling for many years now, and it seems that legal and policy resolutions are still a work in progress.   

A legal summary is at:  Madden, Tina, and Cockburn, “Property rights in and entitlement to possession of sperm following death,” Journal of Bioethical Inquiry 2011 (8):  324-327.

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