I Want To Have My Dead Husband’s Baby

 

Ms Jocelyn Edwards approached us in August last year to assist her being able to get access to her late husband’s frozen sperm for the purposes of being able to undergo an IVF program.   Jocelyn’s husband Mark died as a consequence of a work place accident on the day before the couple were to sign the final documents to commence an IVF program. This extraordinary lady hours after being told the horrible news that her beloved husband had died, had the strength of character and intelligence to enquire as to what could be done to preserve his sperm and on her own was able to convince a Senior Supreme Court Judge to issue an Injunction empowering Doctors to extract the sperm from her husband’s body and to keep it preserved. Notwithstanding what would seem to be a clear process to put into effect what the parties had obviously been planning for quite some time they were now faced with a legal document entitled and known as the Assisted Reproductive Technology Act of 2007(ART Act).  This Act not only prohibited the use of Mark’s semen (referred to as a gamete) without his written consent but also did not even allow a Court of Law to exercise discretion in unusual situations.  The evidence was clear that Jocelyn and Mark had even contemplated being able to use his sperm and proceed with the IVF program in the event of his death, after he became concerned that he might have been suffering from some illness.  Advice from Senior Counsel was still to the effect that although there clearly was an intention to be able to proceed with the program after one party’s death, there was no document in writing. The law in this area is unusual in that different States and Territories have different pieces of legislation.  An IVF program could not be undertaken in NSW in the absence of Mark’s written consent.  The firm proceeded with the Court action and was able to persuade the presiding Supreme Court Judge to simply allow the sperm to be given to Jocelyn who was the Executrix of her husband’s Estate. This will allow Jocelyn to consider entering into an IVF program outside NSW.  Needless to say after many months of grieving and anxiety, we have assisted a remarkable woman in being able to choosea path, which will offer the possibility of fulfilling a long held dream. This case has many consequences for all in the community.  It is important that it was recognised not only by the legal establishment and by the media as well, since it received extensive coverage. As a consequence we are recommending many of our clients who may find themselves in a situation where the possibility of offering parts of their body for use to spouses and members of family, should now be incorporated in their Wills.  If you can perceive such a possibility in your own circumstances, your Will ought to be amended so as to be able to clearly provide the written consent that is necessary in being able to offer the use of parts of your body following your death. As always, please feel free to contact MBBF to discuss the matter.