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The most important asset: succession for your embryos

6 March 2018

As couples today commonly engage in IVF treatment, the question must be considered, what will happen to your frozen eggs/sperm or fertilised embryos on the death of you or your partner?

It is highly recommended that you discuss with your partner what you wish to happen to your frozen eggs/sperm or fertilised embryos after your death. You may include a declaration in your Will that will allow your partner to continue on or commence artificial conception after your death. If such consent and approval is not clearly provided, issues will arise.

The Assisted Reproductive Technology Act 2007 (NSW) ("the Act") addresses what will happen when consent has not been expressly provided by a deceased person. Section 23 of the Act states, "an Assisted Reproductive Technology ("ART") provider must not provide ART treatment to a women 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."

Note: "gamete" under the Act means "a human sperm or a human ovum".

The 2015 NSW Supreme Court case of Ping Yuan v Da Young Chen addressed the legal medical ethics connected to such a situation. The deceased, Mr Chen suffered the rapture of a major blood vessel. He was admitted for emergency surgery and passed away shortly after. Mrs Chen claimed that her husband, just before his death, confided with her that he wished to have one more child; however his consent had not been documented.

Mrs Chen made an urgent ex parte application to facilitate collection of sperm from her husband whilst he was unconscious. The extraction was shortly carried out prior to Mr Chen’s death.

Despite the prompt collection occurring under dire circumstances, Mr Chen’s consent had not been formally provided to Mrs Chen to actually use the sperm for the purpose of artificial conception. Mrs Chen has since not been able to use the sperm in NSW for artificial conception due to section 23(a) of the Act.

A similar case is currently in the NSW Supreme Court regarding the request of widowed Ms Gonzales to use the stored sperm of former bikie boss Mick Hawi.

These cases emphasise the importance of young couples undertaking IVF treatment in NSW to have formal written consent expressed in each of their Wills.

 

This article is general information only and should not be relied on without obtaining further specific information.

Linda Alexander Business Lawyer / Director

Linda Alexander is a Business Lawyer and acts for clients on a wide range of business law, superannuation, estate planning, family provision and p.. Learn more about Linda Alexander

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