The Daily Populous Wednesday January 10th, 2024 evening edition
Authored by abc.net.au and submitted by Sariel007

A 62-year-old woman has been given the green light to have sperm extracted from her dead husband to conceive a baby, after the couple lost their two adult children in separate accidents.

Key points: The couple's two adult children died in recent years, the court heard

The couple's two adult children died in recent years, the court heard They had discussed conceiving a child via a surrogate

They had discussed conceiving a child via a surrogate The court's order does not allow the sperm to be used in any way

But she won't be able to do anything with the sperm, as posthumous fertilisation is banned in WA.

The man, who was 61, died suddenly at the couple's home in Western Australia on the morning of December 17 and the woman pleaded her case in the Supreme Court at an "urgent" hearing the very next evening.

Justice Fiona Seaward granted the woman permission to have spermatozoa tissue removed from her late husband, whose body is being stored at a Perth morgue.

The court heard the couple had discussed conceiving a baby after the deaths of their two adult children. ( Flickr: Quinn Dombrowski )

The court heard the couple had for years regularly discussed having another child after their 29-year-old daughter drowned in 2013 fishing trip, and their 30-year-old son died in a 2019 car accident.

The pair had been married for 39 years.

The woman, who cannot be identified, told the court she and her husband had discussed having an overseas surrogate carry their child using the man's sperm.

The 62-year-old had been told by a fertility expert she was too old to have a child, but testing of her husband's sperm had deemed it suitable to be used in IVF.

In 2018, a 42-year-old Perth woman won the right to take her dead partner's frozen sperm to the ACT in a bid to have his baby, in a civil case heard in the WA Supreme Court.

Her 53-year-old husband's sperm was extracted after his death.

The woman told the court her cousin, aged in her 20's and living in the Philippines, had volunteered to be a surrogate for the pair.

But the couple would have still encountered legal obstacles going down that path, with the court told they would have been required to both live in the Philippines for a certain period of time.

In handing down her decision, Justice Seaward said she had no reason to believe the woman's husband would have objected to the removal of the sperm tissue from his body after his death.

In WA, there is a provision allowing for the removal of tissue from bodies in hospital for medical reasons.

But the use of reproductive cells following death is prohibited in Western Australia.

The WA government is reviewing assisted reproductive technology legislation.

University of Western Australia Professor of Reproductive Medicine Roger Hart said while it was possible to use the sperm for posthumous fertilisation, there were "real ethical challenges".

"Medically it's all feasible," Professor Hart said.

"But it's whether it's the right thing to do … counsellors, psychologists would be the best people to make that judgement."

Roger Hart is a professor of reproductive medicine at the University of Western Australia. ( Supplied )

Due to WA's ban on posthumous fertilisation, any application to use the sperm would require an application to the Reproductive Technology Council to export the sperm to another jurisdiction, like Queensland, where posthumous fertilisation is legal.

Professor Hart said the council would take into consideration whether the deceased man expressed a wish to have a child with his wife, what supportive network there would be around the 62-year-old woman, as well as the specific circumstances of the case.

"The woman is going to have to use donor eggs, because she's 62 and she's also planning to use a surrogate," he said.

"It's posthumous use of the sperm, so the child will never know its dad. There's going to be an egg donor to have sperm inseminate those eggs, and we're going to then transfer the embryo to a surrogate, so there's several steps.

On top of that was the risk posed by the use of sperm from an older man.

"We do know that sperm from older men, whether it's posthumous, or from fresh sperm does have a higher rate of chromosome abnormalities deletions within the sperm, which pose a greater risk of the child born," Professor Hart said.

"So these are other things the woman will be counselled about."

Justice Seaward also questioned why the matter had come to court in the first place.

The matter was heard in the Supreme Court of Western Australia. ( AAP: Richard Wainwright )

She said the decision to remove tissue from the husband's body could have been made by a hospital delegate.

The woman told the court she had tried to get that approved, but her request wasn't actioned by the hospital on the day of her husband's death.

Justice Seaward was critical of the hospital in her written ruling.

"It is disappointing that it appears that, once again, an applicant has been required to attend court on an urgent basis and in traumatic circumstances to obtain an order that may ... be granted in a faster and more streamlined manner," she said.

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