Testes of dead man legally removed and stored, but partner of deceased will need to apply through Australian court for permission to access and use sperm

The parents of a man who died unexpectedly are likely to object to any application by his partner to use his sperm for IVF because the pair had only been dating for about seven months, a lawyer involved in the case says.

Last month an Australian court ordered that the testes of the dead man, Tony Deane, be removed and stored in case his partner, Leith Patteson, decided to use the sperm for IVF treatment to have a baby.

But a second application will need to be made to the court to gain permission to access and use the sperm, the principal of Munro Legal in Queensland, Bill Munro, says.

Women's fertility underestimated by 68% in 'highly inaccurate' hormone test Read more

Munro, representing the parents of Deane, said Deane died unexpectedly last month aged in his early 30s. Patteson had to make an immediate application to Queensland’s supreme court to retrieve his testes, because sperm must be retrieved and stored within 36 hours of death in order to be useable, and ideally within 24 hours. Patteson’s application was successful.

Munro said while Deane’s parents, who live in New Zealand, had not opposed the court order to store his testes, they would likely oppose a secondary application for their son’s sperm to be used for IVF.

“We don’t know when or even if that application is going to be made,” he said.

“My clients would not agree to it, however, based on the material they have available. They don’t know his girlfriend. It’s as simple as that. There was very short-term relationship between the applicant and their son, something like seven months. It started in September and he died in April.

“They don’t have all the evidence though, so their position may change if more was provided and if an application was actually made.”

Posthumous sperm donation is an issue that rises rarely but when it does, medical, ethical and legal issues collide. According to a report published in the Australian and New Zealand Journal of Obstetrics and Gynaecology, advances in medical technology have made postmortem sperm retrieval increasingly successful, but “while the procedure itself is not technically difficult, the ethical and legal issues associated with sperm procurement are complex.

“When a man unambiguously documents his intent/desire to undergo postmortem sperm retrieval, most ethicists would agree that the procedure is ethically permissible,” the authors write.

Victorian egg and sperm donors to lose anonymity under new legislation Read more

“Matters become more complicated where there is no explicit written consent, a situation where the question of evidence of intent becomes of central importance. Without explicit consent, it may be unclear whether the deceased man would have wanted to father a child that he himself would not be able to raise.”

A separate article in the Journal of Intensive Care Medicine draws a similar conclusion, stating that while laws around sperm procurement differ between countries, the issue of what to do in the case of an unexpected death was a challenge for health systems and courts everywhere.

“Although sperm procurement and preservation has been become commonplace in situations in which infertility can be easily foreseen, peri- or postmortem sperm procurement for reproductive use in unexpected coma or death is not generally accepted,” the authors wrote.

The law around posthumous reproduction differs between Australia’s state’s and territories. In some jurisdictions, explicit consent to retrieve reproductive organs and sperm must have been given prior to death. Some restrict access to women who are infertile, or only to those who were married to their partner. However, there is nothing in the law to stop someone taking sperm to a state or territory that allows it to be used without written consent, such as the ACT.

Research published in the Journal of Medicine and Philosophy by Dr Rebecca Collins argues that the laws in most jurisdictions are too restrictive because they did not factor in sudden and unexpected deaths, where explicit written consent would not have been given.

She writes: “Presumption against consent in the case of deaths caused by sudden trauma is not justified by the argument that most people would not have consented to posthumous reproduction had they been given the opportunity.

“Besides the fact that there are no empirical studies to support such a claim, there are at least as good reasons, if not better, for supposing that in many cases consent would have been given.”

Dr Ben Kroon, a gynaecologist who has researched posthumous sperm donation, described it as an “extremely complex and challenging area of reproductive medicine”.

He co-authored a paper, published in the Australian and New Zealand Journal of Obstetrics and Gynaecology, which surveyed 28 IVF clinics across Australasia to test attitudes towards posthumous sperm retrieval and use.

Sperm donation laws can lead to untold heartache – for both donors and recipients | Margaret Ambrose Read more

“We found that while IVF clinicians and IVF units are very open to assisting people with regard to sperm retrieval, given that’s our job, many are uncomfortable about what to do legally,” he said.

Kroon’s own clinic, Queensland Fertility Group, has protocols in place should a request for posthumous sperm retrieval be made. But smaller clinics may not have protocols, he said, adding that it would be worthwhile for all clinics to implement them.

“The first time I was asked to do a posthumous retrieval, thankfully I had senior clinicians guiding me to say ‘you need to be given a court order’,” he said.

“There are a lot of IVF units around the country for whom it would not frequently come up and I suspect many don’t have protocols. That’s not to say they don’t have the expertise to retrieve and freeze the sperm, but they may feel unsure legally.”

In cases where the sperm was stored, it was rarely later used for IVF, his research had found. This was likely due to a combination of legal difficulties and changes in the woman’s circumstances, he said.

Kroon believes the topic is worthy of greater community discussion and legislative review to make the guidelines more clear, more uniform between states and territories, and based on the latest ethical, medical and legal expertise.

The National Health and Medical Research Council’s Australian Health Ethics Committee develops the ethical guidelines on the use of assisted reproductive technology in clinical practice and research, which cover posthumous sperm retrieval. However, these guidelines were issued in 2004, with only the research guidelines updated in 2007.

A council spokeswoman said the guidelines were currently under review.

“A number of salient issues, including the posthumous collection and use of gametes, are being considered as part of this review,” she said. However, the guidelines have no legal force.

Letting a widow keep her husband's sperm is a victory for compassion | Ally Fogg Read more

University of New South Wales professor Michael Chapman, who is vice president of the Fertility Society of Australia, said there was another factor that needed to be considered in posthumous sperm retrieval cases: the best interests of the child. Among fertility specialists, he believes there is still “a general view that the best rearing for a child is with a two-parent family”.



“Although the modern age of single women having children and gay couples having children probably says we’re changing our views in that regard in terms of what’s best for the child,” he said.

“But what we’ve got to think about is if this woman who has lost her husband will remarry. Will that be an issue? Will she have children by the new family? Where does that put this child? Will it be less loved? In the heat of the moment of a husband dying, no decision should be made about the use of the sperm, but it is totally reasonable to keep that door open by freezing the sperm.”

He said provided the sperm had been retrieved and frozen early enough, there was no difference in the success rate between it and any other frozen sample, and that the chance of success would also depend on the woman’s age and the quality of the sperm.