Practical Tips with Posthumous Use

Abstract

Background: Posthumous use remains a controversial topic. Far too often, posthumous sperm retrieval occurs following the making of urgent Supreme Court orders-when both case law and statute say that such urgent orders are neither necessary or are legally dubious. The surviving parent then is often told to commence court proceedings in order to be able to either use or export the gamete-when often the best approach is not to go to court, but instead demonstrate to the clinics concerned that there has been full compliance with the law and the Ethical Guidelines’ requirements as to posthumous use. In recent years there have been many cases concerning posthumous use, most of which point the way to making the process easier-either in that State or by cross-border reproduction. Aim: To demystify law and practice about posthumous use. Method: To set out the law concerning posthumous use in each Australian State and Territory (both statute and case law) in the accompanying paper, set out practical tips for practitioners about what to look for, and to provide flowcharts for each State and Territory about what needs to be covered in any posthumous case. Results: Too often widows are told to spend considerable sums in unnecessary court cases. Court cases are usually not required in order to lawfully undertake posthumous use. A leading case about posthumous use from Queensland, for example, omitted in all its numerous citations a significant High Court of Australia case about gametes. A significant Western Australian case about who is a donor may also have implications in other States. Conclusion: As per the method.