After a two year battle in the Supreme Court of Queensland, a recent landmark decision was recently handed down granting a young woman the right to be inseminated with the sperm of her late partner.
The sperm was removed from the would-be-father’s body within 24 hours of death and held by an IVF clinic pending the final Court decision. In making the decision, the Court had regard to a number of factors including the following:
- That the deceased was in a committed relationship with his partner, the prospective mother of the child, with a view to sharing a future with her prior to his passing;
- That prior to his passing, the deceased had expressed his wish to, and had intended to, have children with his partner;
- That the deceased’s partner understood the difficulties associated with being a single parent, and had the financial and emotional capacity to deal with those difficulties;
- That the deceased’s partner had the support of the deceased’s family and friends as well as her own;
- That sufficient time had elapsed since the passing of the deceased (2 years) to enable his family and friends, including his partner, to undergo the grieving process to the extent that they were then capable of making rational decisions relating to him, rather than emotional decisions made in response to dealing with loss.
The Court accepted the argument that, although the human body cannot be owned or possessed, it can still be the subject of “property rights” in certain circumstances. In this manner, sperm was held to be “property” that the deceased’s partner was entitled to possess, on the basis that it was capable of being removed from the body and used to have a baby.
The Queensland Law Society has since acknowledged that this unprecedented decision now calls for new legislation to be drafted around this area. This may assist in keeping up with developments in technology; and in addressing the fact that artificial means of conception are being used more and more frequently, which is perhaps a reflection of the increasingly liberal views that society as a whole seems to have adopted in relation to the topic.
Moving forward, careful consideration will no doubt be given to the broader implications of this decision in the realms of family law and succession law, including:
- The degree of involvement of the deceased’s family in long-term care decisions in relation to the child;
- The relationship between the child and any future partner of the mother;
- Whether the deceased person would be considered an “intended parent” and therefore the father of the child, or merely a sperm donor. In Queensland, sperm donors currently do not have any rights or liabilities in relation to the child unless they are married to, or in a de-facto relationship with, the mother of the child;
- Whether the child has any claim in relation to the deceased’s estate.
If you are in need of any assistance with navigating constantly changing laws in these areas, come and see the experienced Family Law team and Wills and Estates team here at McLaughlins Lawyers.