By The TCF Team

Section 46 of the Assisted Reproductive Treatment Act 2008 (Vic) (“Act”) provides that a registered Assisted Reproductive Treatment (“ART”) provider may use a person’s gametes, or an embryo created from the person’s gametes, in a treatment procedure after the person’s death only if:-

  1. the treatment procedure is carried out on the deceased person’s partner (s46(a)); and
  2. the deceased person provided written consent for their gametes or an embryo created from their gametes to be used (s.46(b)); and
  3. the patient review Panel has approved the use of the gametes or embryo (s.47) and
  4. the person who is to undergo the treatment procedure has received counselling (s.48).

What if you do not have the written consent of the deceased?

AB v Attorney-General for the State of Victoria [2005] VSC 180; (2005) 12 VR 485 was a decision of Hargrave J in respect of declaratory relief sought by a widow who wished to use semen from her deceased husband in order to have a child.

The facts:

  1. AB’s husband had been killed in a motor vehicle collision in 1998 aged 30. The couple had been married for almost 10 years.
  2. AB made an urgent application to the Supreme Court of Victoria for an order permitting a sample of semen to be removed from her late husband and stored. That order was made by the Supreme Court of Victoria.
  3. In Victoria, a person’s gametes may be used after the provider’s death in limited circumstances, including that the deceased person provided written consent. AB did not have written consent from her husband.
  4. A declaration was made by Hargrave J that section 43 of the Act did not prohibit the carrying out of the assisted reproductive procedure. However, a further declaration was made that section 12 prohibited the proposed procedure being carried out in Victoria.
  5. AB then sought permission from the Infertility Treatment Authority to export the semen to the ACT. The ITA refused permission.
  6. AB then applied to the Victorian Civil and Administrative Tribunal (VCAT) but in the resulting judgment she was identified by different initials: YZ v Infertility Treatment Authority [2005] VCAT 2655. She again sought the approval of ITA for permission to remove the semen from Victoria and to transfer it to the ACT. Her late husband’s parents and siblings gave evidence in support of her application.
  7. VCAT overturned the ITA’s decision and granted permission to YZ to take the semen interstate for assisted reproductive treatment.

Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478

Mrs Edwards was unable to use frozen semen from her late husband for assisted reproductive treatment in New South Wales because the law required the provider’s written consent.

Senior Counsel for Mrs Edwards submitted that she had a right to possession of any part of Mr Edward’s estate. After considering various discretionary factors, Justice Hulme found that it was open for the court to find that not only was Mrs Edwards the only person in whom such an entitlement would fall to, but that she was also entitled to possession of the semen.

As Mrs Edwards was prevented from undergoing ART in New South Wales, Justice Hulme considered whether she was prohibited in taking the semen interstate or overseas to undergo IVF treatment. It was submitted on behalf of Mrs Edwards that the prohibition attached to the ART provider, and not the recipient of the material, it would not result in a breach of the Act, despite IVF Australia’s knowledge that Mrs Edwards intended to take the semen outside of the state. His Honour accepted that submission.

GLS v Russell-Weisz [2018] WASC 79

A Perth woman (GLS) won the right to take her deceased husband’s frozen gametes to the ACT for assisted reproductive treatment. The couple had been together for more than five years when the husband died of cardiac arrest in February 2016. GLS obtained permission from her late husband’s adult son to use the semen. In July 2017, GLS requested permission from the Reproductive Technology Council of WA (RTC) to move the semen to the ACT, which does allow gametes from dead providers to be used in assisted reproductive treatment. The RTC refused her request.

GLS then referred the matter to the Supreme Court. Chief Justice Wayne Martin held that GLS had the right to direct the clinic storing the semen extracted from her late husband to transfer the semen from Western Australia to the ACT and that she did not require the approval of the RTC before the semen could be exported.