A 42-year-old Perth woman has won the right to take her dead partner's frozen sperm to the ACT in a bid to have his baby.

The woman, known as GLS, launched civil proceedings in the Supreme Court last year, following the death of her partner in early 2016.

The man, referred to in court documents as Gary, suffered a heart attack in late January of that year was pronounced dead at Royal Perth Hospital a few days later.

He was 53 years old.

The couple had been together for more than five years, and had discussed freezing Gary's sperm in late 2014, due to his age and fear of early death.

Following his death in February 2016, GLS contacted a fertility centre specialist who attended the RPH mortuary and extracted the sperm, which was placed in storage at the fertility clinic.

In December 2016, GLS obtained permission from Gary's adult son to use the sperm, with the condition she not contact Gary's family for financial or emotional assistance.

However, directions published in November 2004 by the then CEO of the WA Health Department prohibit fertility clinics in WA from knowingly using gametes (eggs or sperm) from deceased providers for artificial insemination or in vitro fertilisation.

In July 2017, lawyers acting for GLS contacted the Reproductive Technology Council of WA (RTC) to request approval to move the sperm to the ACT, which does allow gametes from dead providers to be used in artificial insemination.

The RTC responded in October it would not allow the transfer to take place, arguing to do so would be contrary to state legislation.

GLS then referred the matter to the Supreme Court, arguing she was entitled to have the sperm moved to the ACT, and also that RTC approval for such a move was not required.

In a hearing before Chief Justice Wayne Martin last month, lawyers for the WA Health Department argued that only under circumstances in which all participants were still alive could extracted gametes leave WA without RTC approval.

The department claimed the death of a person from whom gametes have been extracted infers that person has lost control of how that material can be used, effectively making the extraction a donation and bringing it under the purview of the RTC.

But Justice Martin dismissed that argument, and ruled since Gary's sperm had been extracted posthumously it could not be considered a "donation of gametes", and GLS was entitled to have the sperm transferred to the ATC.

In his findings, Justice Martin said it was not the court's role to determine the wider validity of the 2004 directions except as they apply to individual cases.

Loading...