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

Last Updated: 9 March 2017
Article by Sherlene Heng and Amy Pun

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.

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