Saving the seed

Part one of a two-part article from our legal correspondent. Posthumous sperm harvesting continues to develop as an intriguing and contentious issue. By Scott Trueman

Posthumous sperm retrieval (PSR) is a procedure in which spermatozoa (sperm) is extracted from a man after he has been pronounced legally deceased.

What is the ethical and legal basis of undertaking such a procedure, often sanctioned by a court ruling?

In such an eventuality, what are the legal rights of the child and surviving parent if the sperm is used for impregnation? Who determines, and on what basis, the ‘interference’ or invasion of the deceased when they are not alive to give informed consent related to their autonomy?

Does a deceased person have any rights concerning their corpse anyway? How does a nurse or midwife respond, when confronted by a female partner of the deceased male seeking guidance on such issues?

This is the first of a two-part article concerning these contentious issues which continue to legally develop through litigation but which remain vexing moral and ethical issues for individuals in society. In the first part we will refer to the most recent case which defines the current law concerning this topic. In the second article (next edition) the ethical and moral arguments will be canvased and explored.

After a male becomes deceased, time is of the essence. To ensure the successful retrieval of viable sperm, the less time between death and collection the better, and after a very short delay, the process becomes pointless due to irretrievable degradation of the sperm. Hence, most legal cases have been urgent applications to simply retrieve and store the sperm, with the longer-term questions as to the sperm’s actual usage, and in what manner, being postponed for later consideration. A recent 20232 South Australian case addressed this second line of inquiry and subsequent determination of reasoning.

The applicant’s husband died in a motor vehicle accident in March 20231. Two days after his death his 28-year-old wife commenced urgent proceedings to retrieve sperm from the deceased. The court granted permission for the sperm to be removed, preserved and stored at the discretion of the coroner’s court.

A further order was made preventing the sperm being used for any purpose without an order of the court. This first application and consequent orders were clearly a response to the medical necessities caused by sperm degradation through the passage of time.

The wife sought further court orders in August 20231 entitling her to possession of the sperm and an order for its ‘release’ to her. She did not seek orders concerning the use to which the sperm would be used, although it was apparent that the sperm was to procure pregnancy by in vitro fertilisation.

There were a number of issues for the court to determine. Firstly, is the deceased’s sperm legal property or part of his estate? The beginning of this determination was that the common law historically did not recognise human tissue attracting the legal status of ‘property’. The relevant high court decision was over 100 years old, and therefore decided before advancements in science and technology existed, before such procedures were even contemplated.

The court then looked to an exemption to the rule in that the retrieval and preservation of the sperm required “requisite work and skill” and on this basis, the sperm was treated as property to the extent that there was an entitlement to possession. After all, there is little point in collecting the sperm and storing it if it cannot be used.

Secondly, who is entitled to possess the sperm? The deceased cannot for he is dead, the sperm laboratory cannot hang on to it forever – does it become part of the estate of the deceased, and hence can be bequeathed to another or possession passes to the person who sought the original order for retrieval (the partner). Can she take possession?

The court was of the view the sperm could be possessed by the partner and does not form part of the deceased’s estate.

This is a far cry from earlier court decisions where it was held that there was no right to interfere with a corpse. Two earlier Queensland cases stated that those entitled to possession of a body have no right, other than the mere right of possession for the purpose of ensuring prompt and decent disposal (burial).

Justification for this prohibition in interfering with a body (corpse) was based on the possibility of criminal prosecution in removing part of the body for whatever reason or motive being unlawful.

The evolution of the law, through the passage of time (and consideration/deliberation) means that the posthumous harvesting of sperm and the use of the same for vitro fertilisation to ‘create’ a child without their biological father, (being present during their life) is not only a real medical possibility, but a likely occurrence sanctioned by the courts.

That said, the divergence between the ‘stated’ law does not quash nor quell the ethical and moral concerns and debates in relation to such pronouncements and ‘developments’. The follow-up article next month will explore this vexed argument.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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