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HomeAugust 2015 Issue 107

Whose sperm is it anyway?

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Many Australians are turning to assisted reproduction technologies to conceive but have they considered what will happen to any stored genetic material in the event of their death? This question was considered by the ACT Supreme Court in a recent case (Roblin v The Public Trustee for the Australian Capital Territory & Anor [2015] ACTSC 100).

Following a diagnosis of cancer, James (not his real name) deposited sperm samples with a Canberra fertility clinic prior to undergoing chemotherapy treatment which would likely affect his fertility. At the time of depositing those samples James signed a contract which stated that the stored samples would be destroyed in the event of his death or permanent disability.

James and his (then) girlfriend, Amy (not her real name), made plans to be married and discussed having children using the sperm deposits. The couple decided against the idea once they found out James’ cancer was terminal. The couple also discussed  the possibility of Amy sharing the sperm with two lesbian friends of theirs who were having difficulty finding a sperm donor. James’ wishes were only discussed verbally and not formally documented.

James died of cancer a month after he and Amy were married. The sperm deposits had not yet been used and James did not leave a will. After his death Amy contacted the fertility clinic regarding the use of her late husband’s sperm samples but was told that since James had died the clinic was obliged to destroy his samples in accordance with the contract he had signed. Amy commenced court proceedings arguing that her late husband had intended for her to receive the sperm samples as part of his estate.

… James’ stored sperm samples were part of the personal property of his estate and passed to his wife as the beneficiary.

In considering the legal authorities in this area, the Court recognised that while there are a significant number of cases that have dealt generally with the status of human sperm following the death of the donor, different issues arise in relation to sperm taken with consent prior to death and sperm extracted after death. There were no prior cases in the ACT dealing with this particular context.

In an interesting decision handed down in April this year the Court held that James’ stored sperm samples were part of the personal property of his estate and passed to his wife as the beneficiary. The clinic could not destroy those samples so long as storage fees continued to be paid.

This case is a timely reminder for those who have genetic material (eg. sperm, eggs or embryos ) stored with a fertility clinic to specifically consider what they would want to happen in the event of their death or permanent disability. Regardless of what your wishes are regarding the use of any stored samples, it is worthwhile discussing your intentions with your family and documenting those wishes.

It also highlights the need to be aware of the terms of contracts with fertility clinics regarding the destruction of stored samples before or after death. While Amy was ultimately entitled to use her late husband’s sperm samples, the complex court proceedings may have been simplified with more detailed planning.

Once you have decided how you would like your genetic material to be dealt with, you should notify your lawyer of your intentions which will enable them to give effect to your wishes specifically under a will or enduring power of attorney.

Rehana Richard is a lawyer in the Wills & Estates team at DDCS Lawyers. The firm offers specialised advice in the area of estate planning and assisted reproduction. (02) 6212 7600 [email protected], www.ddcslawyers.com.au

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