Australia: Thinking of starting a family? Written consent may be the way of the future.

Some people plan a family in advance. Others may have it at the back of their minds for some time.

IVF has become a far more accessible service in the last decade and what happens to frozen embryos if a couple separates is entirely dependent on the nomination they make at the time they sign the contract to create said embryos.

However, very few people sign contracts in relation to the use or retention of gametes (human sperm or human ovum) and there are associated complications with regards to their use. Amy Pun of our office takes a look at the law relating to the use of gametes as set out in the Assisted Reproductive Technology Act 2007 (NSW) ('the Act') and what happens when that does not apply.

The relevant sections of the Act are Sections 19 and 23 which state that:

19 " An Assisted Reproductive Technology ('ART') provider must not provide ART treatment to a woman using a gamete except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent in relation to:
(a) the ART treatment or classes of ART treatment for which the gamete may be used, and
(b) the woman or classes of women who may receive ART treatment using the gamete.
23 "An ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased, unless:
(a) the gamete provider has consented to the use of the gamete after his or her death, and
(b) the woman receiving the ART treatment has been notified of the death or suspected death of the gamete provider and the date of death (if known), and
(c) the woman receiving the ART treatment has given written consent to the provision of the ART treatment using the gamete despite the death or suspected death of the gamete provider.

In the matter of Ping Yuan v Da Yong Chen1, the husband ruptured a major blood vessel. He consented to surgery and remained conscious until a general anaesthetic was administered for the purposes of the operation. The medical practitioner responsible for the husband's care advised he only had hours to live. The wife stated that before the husband lost consciousness, he had said to her that he wanted to have one more child with her.

An urgent ex parte application was made by the wife for an order to facilitate the collection of sperm from the husband.

The Act was inapplicable in this case as it dealt only with persons who donate gametes by consent. However, Justice Fagan established that the extraction and storage of sperm was considered (minor) 'treatment' for the purposes of s40 of the Guardianship Act 1987 (NSW), and that the wife satisfied the requirements of s33A(4)(b) of the Guardianship Act as a 'person responsible'. A declaration was made that the medical practitioners could lawfully undertake the collection. The Court stated:

"It appeared unlikely that Mr Chen would recover consciousness to be able to give consent himself. What he had said to the Plaintiff, as quoted at [4], did not amount to consent for such a procedure. The urgency of collecting the sperm, if it was to be done, was considerable. I was informed that posthumous extraction would be possible but with diminished prospects of viability, in direct relationship to the length of delay after death."

The extraction was carried out shortly after the Court's declaration and Mr Chen died 45 minutes later.

Despite the collection having occurred, the husband's consent had not yet been established for the purposes of using the sperm (either pursuant to s19 of the Act where the partner is still alive, or s23(a) of the Act where the partner has passed away and consent is required for use after death).

The wife is therefore unable to use or deal with the semen and she is not to remove it from the control of the Fertility Clinic until further order of the Court. The date for a substantive hearing had not yet been listed as at the time of writing.

In the matter of MAW v Western Sydney Area Health Service2 the Court was also required to determine if it had jurisdiction to authorise a relevant surgical procedure in the absence of consent by the patient.

In that case, the husband was in a motor vehicle accident, suffered brain damage and was on life support. He was in imminent danger of dying. The wife wished to preserve his semen so that she could possibly have a child in the future. However, the couple had had no plans to have children at the time of accident and the Court held that its parens patriae jurisdiction did not extend to authorisation of this type of non-therapeutic surgical procedure.

In the matter of Jocelyn Edwards; Re the Estate of the late Mark Edwards3, the couple had difficulties conceiving. The husband had concerns that he had a terminal illness and the wife stated that on Valentine's Day in 2009, her husband had said to her:

"If something happens to me I would want a part of me to be here with you. Our baby will be a part of us - our legacy even after we are both gone. She will be the bond that unites our families. The bond between [their two children]. If we find out I have cancer I want to make sure we have our baby before I am unable to have one, before I do any chemo. Please promise me you will still have our baby."

Although the husband was cleared of cancer, he was killed in a workplace accident in August 2010, the day before the couple was due to attend an appointment at an IVF clinic to discuss their preferred treatment option and sign consent forms to commence treatment.

Justice Simpson made orders enabling the extraction of sperm from the husband's body to be preserved pending further order.
The wife sought orders from the court for the release of the sperm held under storage and for permission to use the sperm in the provision of ART to her. The wife submitted that she was entitled to possession of her husband's sperm because she was the administrator of his estate.

Justice Hulme granted the application noting that the application was for 'release' of the sperm, and not for its use in NSW. Pursuant to s23(a) of the Act, the wife cannot lawfully use the sperm for ART in NSW. It remains open for the wife to travel to another State or Territory or overseas to undergo treatment.

It was specifically stated in the judgment that the release of the sperm to the wife by the ART provider was held not to contravene provisions prohibiting ART providers from supplying gametes without the consent of the gamete provider and exporting or causing a person to export gametes from NSW (s22 of the Act).

WHAT YOU SHOULD DO

The process of IVF is now more established and is regulated by the contracts signed by the parties prior to the time of the creation of the embryo.

However, the use of gametes appears to remain a live issue for the Courts.

While Courts have seemed willing to urgently extract gametes from both dying and dead partners without their consent, and in particular in circumstances where the partner/spouse is an administrator of the estate, the Court may even provide that partner/spouse with possession of the gamete, the actual use of the gamete is still prohibited by the Act in NSW.
While it may seem unromantic, we consider it important for parties to obtain written consent from their partner/spouse to use their sperm or egg (even including consent for its use after death) so as to clarify their intentions for the purposes of the Act.

Footnotes

1 [2015] NSWSC 932

2 [2000] NSWSC 358

3 [2011] NSWSC 478

For further information please contact:

Sherlene Heng, Senior Associate
Phone: +61 2 9233 5544
Email: SXH@SWAAB.COM.AU

Amy Pun, Graduate Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.