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Widow wins right to retrieve husband's sperm

7 January 2013
Appeared in BioNews 687

A Western Australian judge has granted a newly widowed woman the right to retrieve and store sperm from her dead husband, although a further court order will be required before it can be used for any purpose.

The woman, referred to in the judgment as Ms C, had been trying to conceive and recently started IVF treatment with her husband, before he took his own life at the end of December. The husband, Mr C, had a history of depression. His body was taken to the Sir Charles Gairdner Hospital where Ms C's request to retrieve and store his sperm for future IVF treatment was refused by doctors without a court order.

Justice James Edelman of the Supreme Court of Western Australia held an emergency hearing late in the evening the day after Mr C's death and granted Ms C the order she needed to obtain the sample. The judge ruled that sperm fell under the state's Human Tissue and Transplant Act, under which officials are allowed to remove tissue at the request of the deceased's next of kin.

Justice Edelman said the case 'involved circumstances of extreme urgency' and a decision needed to be made almost immediately. He called for similar cases to be handled with 'greater speed and efficiency', and said 'in future a hospital should be able to perform the desired procedure in a case like this almost immediately and without an applicant being required to come to court prior to removal'.

In 2011, a widowed woman from New South Wales, Australia, was allowed to posthumously retrieve and cryopreserve her late husband's sperm after he died in an accident at work. Although a lack of the husband's written consent prevented her from using the sperm in the state, the judge awarded the widow proprietary rights in the sperm enabling her to travel elsewhere for possible use of it in IVF (reported in BioNews609).

Justice Edelman said the case of Ms C raised questions about the courts' response to requests for the posthumous retrieval of sperm, but that, on this occasion, he did not consider it necessary to define sperm as 'property' to grant the order.

SOURCES & REFERENCES
Re section 22 of the Human Tissue and Trasnplant Act 1982 (WA); ex parte C [2013] WASC 3
Supreme Court of Western Australia |  2 January 2013
Widow allowed to use husband's sperm
Sydney Morning Herald |  4 January 2013
Widow granted permission to use suicide victim's sperm in IVF treatment
Australian |  3 January 2013
Widow wins bid to remove sperm
West Australian |  3 January 2013
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