In the age of artificial reproductive technology, extracting sperm from dead men is possible — and it happens more often than you might think.

In Australia there have been a series of court cases centred on whether sperm can be removed from a corpse and given to a grieving partner, so they can one day use it to fall pregnant.

While each case is different, they all raise a string of complex legal and ethical considerations.

In the past two years, David Riwoe, a lawyer based in Toowoomba, has represented two clients seeking to extract sperm from a late partner.

"It was amazing to think Toowoomba, which is a small city in Queensland, could have two of these cases," Mr Riwoe said.

In April 2016, Mr Riwoe represented Leith Patteson, whose partner Tony Deane had died by suicide. She successfully applied to the Supreme Court hours after his death to extract his sperm.

A few months later, in August 2016, Mr Riwoe received an urgent phone call late at night from Ayla Cresswell, whose partner Joshua Davies had also died by suicide.

Ayla Cresswell and late partner Joshua Davies. ( Facebook: Ayla Cresswell )

"[Ayla] called me ... expressing an interest in applying to the court for orders to extract her partner's sperm for possible IVF purposes in the future," Mr Riwoe said.

For a court to grant permission to extract sperm, there must be some indication that the deceased wanted to have children.

Mr Riwoe set to work, obtaining statements and affidavits to that effect.

"They were in a de facto relationship and having children was something that they had definitely spoken about, they had made plans," Mr Riwoe said.

To hear the urgent application, the court opened at 4:30am the following day. In these types of cases, time is in short supply.

"Ideally the operation is performed 24 hours after death, so we were really under the gun," Mr Riwoe said.

Ms Cresswell was granted permission to extract and store her partner's sperm.

The procedure

Howard Smith, the medical director of Westmead Fertility Centre in Sydney, says over his 25-year career, he's carried out the relatively straightforward procedure around 10 times.

"[I use] a needle to aspirate sperm either from the epididymis, that's the little tube outside the testis, or in fact directly from the testis," Dr Smith said.

"It's best that the sperm get collected as soon as possible, however, it's on the record that sperm can retain viability for at least 36 hours."

The situations he has dealt with range from "where the man has died because of a car accident, or a work accident or of a sporting accident".

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In each case, the death was sudden and unexpected.

"At the time that the request comes in, it's a time of high emotion for that man's partner," Dr Smith said.

"Often she hasn't had time to think about the consequences but desperately wants to retain the possibility of pregnancy, particularly if that couple were already in a treatment program."

The second step is to obtain permission to transfer the stored sperm and use it for IVF purposes.

Ms Cresswell only recently received a decision on whether she could do this.

"In Queensland this type of application had never been taken to that second step," Mr Riwoe said.

The ethics

Family members don't always agree on whether extracting sperm is the right thing to do.

While Ms Patteson successfully applied to extract her deceased partner's sperm, Mr Deane's parents spoke out against the removal of their son's testes.

"I believe that Tony would not have wanted a child brought into this world if he could not be there to raise it," his mother Gaye Deane said at the time.

She said if there was a court application to use her son's sperm, her family would fight it.

"It's something that we hope will never happen," Ms Deane said.

Many of the ethical arguments on this issue centre around the rights of the child ( Unsplash: Patricia Prudente )

The rights of the unborn child are also raised as an ethical issue, although Mr Riwoe compares the situation to a single woman seeking out IVF services.

"They've made the decision that they want to conceive and raise their child themselves, so from under that basis I don't think that there's a problem with people filing these applications," he said.

Cameron Stewart, a medico-legal expert at the University of Sydney, has a similar sentiment.

"We need to be really careful about getting rid of, or eroding, people's ability to choose to have babies merely because this particular method makes us feel uncomfortable," he said.

The law

The laws around extracting sperm from a deceased person differ across Australia, Professor Stewart says.

"They are morally and ethically difficult questions and they involve the main constituents of all great drama, which is sex and death, and those things are not easy to legislate," he said.

Unlike parts of Australia, including Queensland, NSW has a specific law which governs artificial reproductive technology, and requires the written consent of any sperm donor.

Professor Stewart says a recent ruling by the NSW Supreme Court involving a young couple, Joel and Yoshiko Chapman, highlights the complex legal situation in the state.

"They'd been married for a couple of years, they were considering having a family," Professor Stewart said, adding they'd taken out private health insurance.

But in March this year, Joel needed to have urgent surgery for health problems relating to his brain.

"Unfortunately during that surgery he suffered a very large stroke and that destroyed the capacity of his brain," Professor Stewart said.

"He was declared to be brain dead."

Later that day Ms Chapman made a request to extract sperm from her husband's body.

The urgent request was approved, but when she later tried to obtain access to the stored sperm, the case became more complicated.

The judge ruled that the absence of written consent meant there had been no solid legal basis to remove the sperm.

However, the work and skill used to extract the sperm transformed it from tissue into property — which meant it formed part of Mr Chapman's estate, and on that basis could be transferred to Ms Chapman.

Given the lack of written consent, however, she could not use the sperm to get pregnant in NSW.

Instead, Ms Chapman must now transfer the sperm to a fertility clinic in a state or territory that does not have the written consent requirement.

Professor Stewart believes the written consent required by law in NSW and some other states is not appropriate.

"My own view is these choices are not going to be made through consent because in all of these cases the men are dying unexpectedly," he said.

"So then we might need to fall back on a broader form of consent."

'A very big decision'

Two years have passed since Mr Deane's death, however, Mr Riwoe says Ms Patteson is yet to come back to court to seek possession of her late partner's sperm.

"Going onto the second stage, it's a very big decision," Mr Riwoe said.

"The first stage you have to act very quickly within that short period of time after death, but for the second application I think that takes a lot of time, a lot of planning. You have to be ready emotionally."

Dr Smith said his experience has been similar.

"In fact it's been the majority of situations where they've not wanted to use it," Dr Smith said.

"After a period of time they reconsider, and as time goes by and they've had a chance to think more in the cold light of dawn, so to speak, they have chosen not to use it."