VCAT rules husband only provided written consent specifically for embryos containing his sperm to be used after his death

This article is more than 1 year old

This article is more than 1 year old

A Victorian woman has been refused permission to use her late husband’s sperm to fulfil their dream to have a baby.

The 41-year-old woman applied last year to use her husband’s sperm to conceive but was denied approval by the Patient Review Panel.

VCAT upheld the panel’s decision, saying the husband had only provided written consent specifically for embryos containing his sperm to be used after his death, putting it at odds with state parliament’s intention.

The woman and her husband had been married for nine years and from the start of their relationship had wanted a family, the tribunal was told. However, his genetic condition meant they would only be able to conceive via IVF.

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They began treatment, with some sperm used to create embryos and the rest frozen. After two unsuccessful IVF attempts, the couple decided to discontinue treatment until the husband’s health improved.

The tribunal was told that prior to IVF treatment in 2008, the couple consented to a surviving partner using the remaining frozen embryos.

But at that time, there was no provision in the forms to consent to posthumous use of any frozen sperm. That is because under the Infertility Treatment Act 1995 then in force, it was not lawful to transfer a dead man’s sperm to a woman, or to consent to a treatment involving a dead man’s sperm.

The tribunal was told the woman and husband were unaware the law had since changed and were never advised they could, as a result, consent to his sperm being used after his death.

“She is sure that he would have provided his consent, had he been asked,” the tribunal noted.

The VCAT vice president, Judge Felicity Hampel, senior member Brendan Hoysted and member Domenico Calabro said even if it was possible to form the view that the husband’s consent to posthumous use of embryos formed using his sperm also implied consent to use of his sperm, it fell short of satisfying the law.

“In this case, the applicant’s husband did not provide written consent to the posthumous use of his sperm,” the tribunal ruled.

“It follows, that there being no consent at all to posthumous use of the sperm, there was no consent to posthumous use of the sperm for a treatment procedure, namely the creation of an embryo using his sperm, and for the purposes of implantation in her.

“It follows from that that a registered Assisted Reproductive Treatment provider cannot use his sperm in any treatment procedure.”