However you feel about posthumous reproduction at least the Supreme Court got this decision correct on legal grounds:
A WOMAN’S quest to have her dead husband’s baby will head interstate or overseas after the NSW Supreme Court found his sperm was her ”property” but state laws prohibit her from using it to conceive a child. Jocelyn Edwards will be allowed to remove from storage at IVF Australia three ”straws” of frozen sperm extracted from her husband Mark hours after he died in a workplace accident last year.
But she will have to convince a fertility clinic in the ACT or Queensland to impregnate her because Mr Edwards did not sign a written consent before he died. Under the NSW Assisted Reproductive Technology Act 2008, a gamete cannot be used unless there is express consent from the donor for posthumous use.
Ms Edwards, 40, and Mr Edwards, 39, were due to sign consent forms to start IVF treatment the day after he died from a balcony fall on August 5, 2010. In the hours after his death, Ms Edwards won an urgent court order to allow his sperm to be harvested and crytopreserved. Yesterday, Justice Robert Allan Hulme granted Ms Edwards ownership of the sperm, despite the likelihood she would use it to undergo IVF in another state or territory, or overseas.
He considered ”whether the granting of Ms Edwards’s application would involve the turning of a blind eye to actions taken which were contrary to NSW legislative provisions; and whether this would encourage similar cases in the future”. Justice Hulme accepted Ms Edwards’s claim that on Valentine’s Day 2009, her husband said to her: ”If something happens to me I would want a part of me to be here with you … please promise me you will still have our baby.”
Ultimately, it would be up to the fertility clinic that Ms Edwards approached for treatment to determine if she did intend for his sperm to be used after his death. The medical director of IVF Australia, Associate Professor Peter Illingworth, said he hoped an interstate service would be ”brave” enough to agree to fulfil Ms Edwards’s wish to have her husband’s baby. ”This is an exceptional case because there is such strong inferential evidence of their intent to have children,” he said.
Women and couples often travelled between jurisdictions to access assisted reproductive technology (ART), to get around laws in their home state, he said. The chairwoman of the Australian Health Ethics Committee, Dr Sandra Hacker, said states without specific ART laws relied on the federal government’s 2007 ethical guidelines, which require ”clearly expressed and witnessed” consent, but not written consent.
Outside the Supreme Court in Parramatta, Ms Edwards said she was prepared to travel to another jurisdiction. ”We’re going to have our baby, that’s what I plan to do, yes.” Her solicitor, Harry Freedman, said: ”We are considering all those options. I wanted to get over this hurdle first.”