High Court rules sperm is allowed to be taken from dead man

A precedent-setting High Court decision has allowed the removal of sperm from a dead man so his partner can have his baby.

A woman, identified only as "Long" in the report, had made an urgent application to the High Court to extract the sperm from her partner of 20 years, known as "Lee", to undergo fertility treatment.

At the time of Lee's death, Long was pregnant with their first child. They had told close family and friends that they wanted to have another baby to give their first born a sibling.

At present there are no statutory or regulatory provisions that deal explicitly with the ability for a person in Long's position collect and use sperm from a dead partner.

Sperm needs to be taken within 48 hours from a body. Recognising the small window of opportunity the court granted an interim order allowing the sperm to be taken and stored pending a substantive hearing.

At the hearing on October 30 Long asked the court to permit the extraction and storage of Lee's sperm and to authorise the release of his sperm into her possession on the basis she used it for her own fertility treatment or exported it to be used for her own fertility treatment in a country where such treatment can be carried out.

Whether Lee is authorised to use her partner's sperm for her own fertility treatment at some future date is a matter for consideration by the Ethics Committee established under the Human Assisted Reproductive Technology Act 2004 (the Act). However, before proceeding with such an application Long first needed confirmation of the lawfulness of the initial removal, storage and custody of her partner's sperm.

The court sought to determine whether the court had jurisdiction to make orders of the type Long sought and, if so, what order should be made and on what terms.

In a decision made public today Justice Heath noted that "while the circumstances giving rise to the application are inherently personal, the legal questions are of public importance".

The court decided that a wife or partner, such as Long, was entitled to apply and the nature of the relationship would be considered.

It was held that the court was the appropriate body to "control" the use of the sperm.

It was held that when an application was granted, the people extracting the sperm do so as agents of the court. Any application to export the sperm, or use it in any other way, must therefore be made to the court for determination at a later stage.

As a result, the court found there was jurisdiction to authorise the coroner to engage a pathologist to extract sperm from Lee's body after his death. The sperm is held by Fertility Associates as agent of the court. Long may apply to the Ethics Committee for approval of an assisted reproductive procedure to enable Lee's sperm to be used to impregnate her.