A 62-year-old widow, known only as Ms H, has been granted permission by the Western Australia Supreme Court to extract sperm from her deceased husband. The ruling, delivered by Justice Fiona Seaward, allows only the collection and storage of the sperm, but not its use in fertility treatment, as posthumous gamete use is currently illegal in Western Australia.

Mrs H and her husband, referred to as Mr H, had been married for 39 years. They had been exploring the possibility of having another child since 2019, after losing both of their adult children in separate accidents in 2013 and 2019. Then Mr H died suddenly on December 17. Mrs H applied for permission the next morning.

The court order emphasizes that there is no evidence that Mr H would have objected to the removal of his sperm after death. On the other hand, he left no documentation of his wishes.

Judge Seaward highlighted the urgency of the situation, stating that delay could forever preclude Mrs H from using Mr H’s sperm for conception.

When the couple sought fertility treatment in 2019, they confirmed that Mr H’s sperm remained viable. Plans for surrogacy were in motion, with Mrs H’s cousin in the Philippines, a woman in her 20s, volunteering to be a surrogate. However, legal obstacles and delays caused by the overseas surrogacy process and the Covid-19 pandemic disrupted their plans.

To proceed with using the sperm, Mrs H must now apply to the WA Reproductive Technology Council, which will determine whether the sperm can be exported to a jurisdiction where posthumous fertilization is legal. This process has been allowed in previous cases, often involving the transportation of gametes to other Australian states with fewer legal restrictions.

Professor Roger Hart, an expert in reproductive medicine at the University of Western Australia, highlighted the practical and ethical challenges ahead for Mrs H. He emphasized the need for donor eggs due to her age and the use of a surrogate. He noted that children conceived with sperm from older men face higher risks of chromosome abnormalities.

“From a medical point of view it is all feasible, but sometimes someone has to take a global view of ‘is this the right thing to do?’” he told The Australian. “That’s when psychologists and counsellors come in to take a broader perspective. Sometimes we are blindsided by our desires and wishes, but is this actually the right thing to do from a societal point of view?”

Justice Seaward also criticized the need for the matter to reach the court, suggesting that decisions regarding the removal of tissue from the deceased could have been made by hospital delegates. The judge expressed disappointment that it had been necessary for Mrs H to seek an urgent court order in traumatic circumstances.