In New South Wales where the deceased has provided consent the Human Tissue Act 1983 permits removal of human tissue after death for transplantation or other therapeutic or medical use in another person.
The Assisted Reproductive Technology Act 2007 (NSW) provides that use of gametes or embryos is permitted after death if
- the donor has consented to such use;
- the woman who is to use the gametes has been notified of the gamete provider’s death; and
- the woman consents to use the gametes.
However, the Act does not cover situations where the deceased did not consent to the use of their gametes prior to death.
The Transplantation and Anatomy Act 1978 (ACT) permits the posthumous removal of tissue where the deceased:
- expressed the wish for, or consented to, the removal, and
- the senior available next of kin does not object to the removal for transplantation into the body of a living person.
Importantly there are no specific laws governing the posthumous use of gametes.
Background
Mr Baratikeshe died in a motorcycle accident in June 2019. Before his death, he and his wife Ms Hosseini had been attempting to conceive a child but had not commenced IVF treatment. Ms Hosseini was named executor and beneficiary of her husband’s estate.
Ms Hosseini posthumously obtained permission for sperm retrieval from the deputy Coroner. She arranged for its retrieval and storage by Genea Ltd.
Decision
In Hosseini v Genea Ltd [2021] NSWSC 1568 the plaintiff applied for a declaration that
- she was entitled to the sperm and
- the defendant was entitled to release it to her for transportation to the ACT for use.
The court held that the sample was lawfully removed from the deceased’s body and, as his executor, beneficiary and senior available next of kin under the Human Tissue Act 1983 (NSW), the plaintiff was entitled to possession of it.
Additionally, as the defendant did not
- claim any rights to the sample
- dispute the plaintiff’s ownership or right to possession and
- object to the orders sought being made
its storage of the sample is finished and it may be released to the plaintiff.
