Australia's Supreme Court allows 62-year-old woman to remove sperm from her dead husband

The Supreme Court of Western Australia allowed a 62-year-old woman to remove sperm from the dead body of her husband so that it could be used in posthumous fertilisation.

An urgent court application was submitted by the woman after the death of her 61-year-old husband late last year. The dead body of her husband was taken to Sir Charles Gairdner Hospital, however, the court was informed that the woman was forced to apply for an order after the hospital promptly failed to make a “designated officer” available who could look into the woman's request of removing the sperm from the dead body of her husband and storing it, while the sperm still remained viable.

While hearing the application, the court got to know that the couple - whose names were not published due to legal reasons - had two children, however, both of them tragically died in separate accidents.

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After the deaths of their children, the couple had discussed having another child, however, the woman was advised by a fertility expert that she could not conceive because of her age. When the man's sperm were tested, it was found that it remained viable.

The court was also informed that a 20-year-old cousin had volunteered to go through the IVF procedure and become a surrogate for the couple. However, the couple was living in a different country, and the woman thought the couple was required to legally live in the country for a particular period of time before going ahead with the surrogacy.

Couple failed to go for surrogacy

However, the couple missed the opportunity to move because of the pandemic, work commitments and the death of the woman's mother-in-law. While giving a verdict on the application, Judge Fiona Seaward permitted the woman to remove the sperm, however, not use it because that would need a separate court order.

“These orders are limited to permitting the removal of the spermatozoa and do not constitute authorisation for the spermatozoa to be used by the applicant, and do not in any way consider whether the applicant can or could meet any statutory criteria in that regard,” the judge said.

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Currently, Western Australia does not permit posthumous fertilisation. The woman for taking the next step and using the sperm needs to apply for the case to get transferred to another jurisdiction which allows the procedure.

Seaward, in her decision, also reprimanded the hospital for not being able to make a “designated officer” available in a timely manner to the woman, which would have stopped the woman from filing a hasty court application.

“It is disappointing that it appears that, once again, an applicant has been required to attend court on an urgent basis and in traumatic circumstances to obtain an order that may, if the designated officer considered all criteria to be met, be granted in a faster and more streamlined manner,” she said.

(With inputs from agencies)