JOCELYN Edwards wants the chance to start a family in memory of the husband she loved and lost one day before the couple signed IVF consent forms.

It's a chance that tragedy appeared to put out of reach when her husband of five years, Mark, died after falling three storeys from a balcony.

But in the hours after his death on August 5 this year, Ms Edwards put aside her grief and convinced doctors to extract and preserve Mark's sperm.

With it lies the hope of a lasting legacy for her husband and a child in whose eyes she'll see the man she loved.

Now the only thing that stands in the way is the ruling of a Supreme Court case, which has deferred the decision to NSW Attorney-General John Hatzistergos.

"Mark wanted us to have a baby, regardless of what happened, regardless of if I passed away or he passed away. It's our love, it's our union, it's our family," Ms Edwards said.



There is no provision in the Assisted Reproductive Technologies Act 2007 for a case like this - where no consent forms are signed by the sperm donor at the time of death.

Losing a husband

A few hours after Mark was killed when a railing gave way, Jocelyn Edwards was in a race against time.

Mark Edwards died at work - he was a cable TV technician - at about noon on August 5.

It was a cruel twist of fate. The job at a McMahons Point house in Sydney was only added to his run late.

The Edwards had been due to visit Westmead Fertility Centre on August 6 to sign consent forms, allowing them to begin IVF treatment.

"It shouldn't have happened. Your wife would expect you to come home . . . we had a family dinner that night. We'd be celebrating his godsister's birthday," Ms Edwards said.

As she grieved in Royal North Shore Hospital, a social worker told her that a doctor had said there was an option - harvesting his sperm.

Initially, a leading doctor at the Westmead centre, Dr Howard Smith, said he couldn't help.

There were the rights of the child to consider, a child who'd never know their father.

"I said, 'you wouldn't be saying that to me if . . . you knew the love Mark and I shared . . . you have single women, quite successful single women who go and get donors and they have the right to have a child," Jocelyn said.

But at 10:30pm Dr Smith rang back.

"I think the first thing I said to him was, 'Are you calling me to give me hope or are you calling me to torture me because why are you telling me this'?" Ms Edwards said.

It turned out he was offering hope. He told her to wake a judge for a court order for the sperm to be removed.

When the procedure was performed by IVF Australia's Dr Frank Quinn, 24 hours after Mr Edwards' death, there was usable sperm.

The court battle

Now Jocelyn Edwards faces another battle, with the Supreme Court to decide whether she can use the sperm and begin the IVF program.

And the NSW Attorney-General Hatzistergos may decide whether or not she has the right to undergo fertility treatment.

There's no legal precedent and at a hearing on the matter this month, the Supreme Court sought advice from the Attorney-General's Department and Crown Solicitor's office on the case.

The indications so far from the Attorney-General's Department, Ms Edwards' lawyer Harry Freedman said, is that they will neither support, nor object to, her application.

Dr Quinn said he did not believe a case in NSW like Ms Edwards had ever occurred before.

"I'm here to try to help people, I don't make the rules," Mr Quinn said.

"This has been an ethical debate they have had all over the world.

"I'm here to help. If the court says she's able to use the sperm, I'm here to help."

A spokesman for Mr Hatzistergos said he was unavailable for comment.

A shared love

The Edwards, of Lane Cove, had a son each from previous relationships. They had been together since they met at a party in 2002 -- he was a talented musician and would serenade her.

The couple married in 2005 and had been trying to conceive for two years. She is 40, he was 39.

Ms Edwards was initially put off by a visit to a fertility centre where she felt a doctor was questioning why they wanted to be on IVF when both of them had a son each from a previous relationship.



But they weren't to be discouraged and the night before Mr Edwards' death, hopes were high.

"I wanted to go with insemination first," Ms Edwards said.

"Mark was like 'come on babe, we've been trying so long, why do you want to waste time? It's less a chance than doing IVF straight away, can we just do it straight away'?"

The next morning was "such a happy morning".

"Mark was so happy, he was making breakfast, cracked the egg, he got a double yolk," Ms Edwards said.

"He got a double yolk for the first time and he said, 'look babe, its a double yolk, we're having twins, we're having twins. It's such a lucky day, it's our lucky day."