02 January 2024 , 15:41
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A woman who lost her husband suddenly, as well as her two children, has won the right to have his sperm posthumously extracted to attempt to have a child, a court has ruled.
An emergency hearing in West Australia's Supreme Court saw the widow, 62, who cannot be named for legal reasons, plead her case the day after her husband of more than 40 years died suddenly aged 61.
The couple tragically lost their daughter in 2013 when she drowned on a fishing trip aged 29. Tragedy struck again in 2019 when their son died in a car accident aged 35. The couple had spent the past four years planning to have another child, the court heard.
The woman was granted the right to remove her husband’s sperm, Supreme Court judge Fiona Seaward ruled, however the widow still needs another court order to use it, as posthumous fertilisation is illegal under state law. The pair had previously been to a fertility clinic hoping to conceive another baby but they had been told the woman wouldn't be able to carry a baby because of her age, the court heard. The couple’s sperm was tested and found to be strong enough to fertilise an egg, and the couple had found a potential surrogate in her 20-year-old Filipino cousin.
“The applicant's evidence, both in her affidavit and orally, is that since the death of her son, she and the deceased had been talking about having another child using his sperm,” Judge Seaward's judgement reads. The couple’s attempts to use a surrogate were also beset with problems. They believed Philippines laws required them to live in the country for a period of time, however their plans to move there were repeatedly knocked back due to Covid-19, the death of her mother-in-law and work commitments.
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After listening to the woman’s heart-breaking story and the couple’s continued frustration in conceiving another child, the judge ruled that she could extract her husband’s sperm. “In making these orders, I was aware they were limited in their operation and did not permit the sperm and associated tissue removed from the body to be used in any way,” the judgement reads. The emergency ruling was called so the sperm could be taken from her husband’s body while it was still viable. “If it did not happen urgently after the death... (It) would forever preclude the applicant from making use of the sperm in an attempt to conceive a baby,' the judgement reads.”
Although the use of posthumously extracted sperm is illegal in West Australia courts have granted others permission to undergo the insemination process interstate to Queensland and the ACT where laws are more lenient. The case raised serious “ethical challenges” says Roger Hart, a professor of reproductive medicine at the University of Western Australia. “From a medical point of view it is all feasible, but sometimes someone has to take a global view of is this the right thing to do?” he said. “That's when psychologists and counsellors come in to take a broader perspective. Sometimes we are blindsided by our desires and wishes, but is this actually the right thing to do from a societal point of view?” he told the Australian.