Widow gets permission to use her dead husband’s sperm

by Peter Magee on August 2, 2011

Peter MageeThe question of whether or or not a widow should be able to use her deceased husband’s sperm has been raised in a recent Supreme Court case, where Justice Hulme found that widow Jocelyn Edwards had property rights to the deceased Mark Edward’s sperm.  This has allowed Jocelyn the possibility of using IVF with her deceased husband’s sperm.

However, while she may have property in his sperm, Mrs Edwards still faces obstacles regarding locating an IVF centre that will allow her to use the sperm as NSW centres require signed consent from the donor.

In the wake of this decision, an article was published by the National Times on 4 June 2011 called Should people be able to use the sperm or eggs of their dead partner”.  In the article, writer Damian Adams explores in detail the ethical and medical issues related to using the sperm or eggs of a deceased partner.

He quotes ethicist, Chris Meney who states that “Sperm and eggs are more significant than other tissue types because they can be used for reproduction.”  He differentiates sperm and eggs from organ donation since “it involves the creation of a new human being related to the deceased.” Meney states that consent to father a child ends upon death and the rights of the child must also be considered. He is of the view “we should not be intentionally creating children who will not have a relationship with and be raised by their biological father”.

Peter Illingworth, a doctor, has a different perspective.  Dr Illingworth says that obviously the welfare of the child must be considered first.  However, he notes that in modern Australia there are already different family structures such as same sex couples and single parents.  In the absence of evidence of serious harm for the future welfare of a child, he thinks people should be free to make the personal choice of whether or not they want to use their deceased partner’s sperm or eggs.

Researcher Jenni Millbank states that arguments regarding children’s best interest are “painfully spurious in this context” as they involve arguing for the non-existence of a child whose interests are protected in the abstract.  However the author of the article, Adams, states that creation of children in this way is not in their best interests as it is a “deliberate and preplanned deprivation of a meaningful relationship that the child should have had [with the deceased parent].”

He refers to the significant proportion of those who wish to meet their donor parent, and who obviously will not be able to in this case.  (See story in our previous blog). Adams also points to sociological data which he says shows that children growing up in a fatherless or motherless household have more social problems such as “promiscuity, teenage pregnancy, imprisonment, substance abuse and poorer educational outcomes.”

The current law in Australia considers the parent of the child born of artificial insemination to be the woman who carries the child and her husband or de facto partner, including if the partner is of the same sex.  Unless the woman has re-partnered since her husband’s death, this means that legally the child would be born with only one parent, that is the mother.  Is there anything wrong with creating children from the outset that will be brought up in single parent home?  Is non existence really better or worse than existing on arguably compromised terms without a father?

In determining what parenting orders a Court should make, the law says that the overriding concern must be for the child’s best interests.  Beyond what the law requires, this sentiment also accords with many people what many people think.  It could be argued that it is against the best interests of a child to be brought up without a father versus not existing, even in a single parent home.

How do we evaluate the best interests of a not yet conceived child?  As the writer of the National Times article (a child of a sperm donor himself) admits, he would not like to be the product of a deceased sperm, however he acknowledges other children of sperm donors may feel differently.  What is in a child’s best interests may depend on the circumstances and the individual child.

This debate involves an usually prospective and hypothetical discussion about best interests where the individual child and their circumstances are not yet formed.

If you are considering using artificial insemination and have any further questions, please do not hesitate to contact us at Armstrong Legal.

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