Over the last decade or so cases concerning posthumous conception, achieved by perimortem surgical sperm retrieval have increased in number globally. These cases are particularly interesting as they challenge Euro-American notions of fatherhood and more generally of family life.
Most recently, the Supreme Court of South Australia granted permission for a woman to use the sperm of her late husband who died in a road traffic accident.
The case involved a number of interlocutory hearings before Justice Gray gave his final ruling in December 2013. In October 2012, the court granted the applicant prima facie possession of the sperm, however, the matter returned to court as the deceased’s parents had not been consulted. The deceased’s parents later indicated that they supported the application for the sperm to be used for IVF purposes.
The ruling now gives access to the sperm, but only to a provider in the Australian Capital Territory where there is no prohibition on the procedure. The judge observed that “Unlike South Australia, with its Assisted Reproductive Treatment Act, the Australian Capital Territory does not have specific legislation to regulate the provision of assisted reproductive technology,”.
In his ruling, Justice Gray concluded that he was satisfied that “the deceased did intend to have a family with the applicant and that that intention was made known to others and was evidenced in writing.”
To read the full judgment click here.