31 May 2011
ByAppeared in BioNews 609
A widow has been granted possession of her late husband's sperm in an 'exceptional' Australian court ruling last week.
New South Wales (NSW) Supreme Court Justice Robert Hulme exercised his discretionary powers to award property rights in Mark Edwards' sperm as part of his estate, over which his wife, Jocelyn, is administrator. The decision means she is entitled to possession of the sperm, allowing her the possibility of using it for IVF to have his child.
'In my view Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them', Justice Hulme held.
Ms Edwards obtained an emergency court order for the posthumous retrieval and cryopreservation of her husband's sperm the night he died in a fatal work accident - just one day before the couple were due to attend a fertility clinic appointment to begin IVF treatment.
No express written consent had been recorded, which is necessary under NSW law for the collection, storage or use of gametes in fertility treatment. An interim order, however, was granted by a duty judge of the Supreme Court and Mr Edwards' sperm were extracted and held pending the final decision.
In giving judgment, Justice Hulme concluded that Ms Edwards would not lawfully be able to use the sperm for IVF in NSW under state laws requiring written consent from the donor. But he decided in favour of her request for possession of the sperm.
Ms Edwards could then possibly be treated if she took the sperm to other Australian states or territories where the laws are ambiguous or rely only on federal ethical guidance, which requires 'clearly expressed and witnessed', but not written, consent.
Although NSW fertility clinics are not permitted to export gametes or embryos without consent, Justice Hulme suggested that - as Ms Edwards had a right of possession - they would merely be 'releasing' it to her for potential export. 'Whether IVF Australia provides them to her if such a declaration is made is another issue', said the judge.
In reaching his decision, Justice Hulme considered several factors to be persuasive, including the future welfare of the child as ‘born to a loving mother’ and extended family - all of whom, he noted, supported Ms Edward's application.'It's the right decision', Ms Edwards told reporters. ‘Mark would be so happy that we're going to have our baby. That's what I plan to do'.