Family practitioners from across the country are questioning both the legal and moral implications of informed consent, stemming from last week’s Supreme Court of Queensland decision to allow a woman to use the harvested sperm of her deceased partner.
Sydney-based Gown + Gavel principal solicitor Alicia Huppatz noted it could be problematic, moving forward, for the court to have ruled that an individual’s reproductive tissue — in this instance, sperm — could be considered as property or chattel.
“There previously hasn’t been any legal basis to say that it is property, and we’ve never had proprietary rights over sperm or eggs unless it’s our own,” she said.
In this case, Ms Huppatz noted, certainty around the deceased man’s intentions was particularly questionable, given that he had, “without any apparent warning signs or any obvious trigger”, committed suicide.
“Whether he had intended to be a father, or for his sperm to be used in that way, if he had ended his own life, then is it not presumed that he did not wish to procreate or raise children?” she posited.
“Arguably, if one is ending their own life, they are ending the lives of any heirs.”
There are “so many questions” around consent to be answered, she mused.
“What if a woman ended her life and her partner petitioned the court to have her eggs withdrawn and carried by a surrogate?”
“[This decision] is going to open the floodgates with this new precedent for partners to make claims in the family law context,” she predicted.
Family & Surrogacy Law principal Sarah Jefford, based in Melbourne, agreed that there are new questions around the meaning of informed consent and bodily autonomy.
“If this can happen, will we need to start opting out of donating organs rather than opting in?” she posed.
“In Victoria, when an egg donor dies, consent dies with them. So, this raises questions about how explicit we need to be about our wishes about our bodies, gametes and genetics.”
Surrogacy law, she explained, centres around intention and conscious decision-making around how to use gametes to create human life.
“In this case, the deceased hadn’t made a conscious decision to do that, so when does our bodily autonomy end?”
“And what does that mean for this child in the future, with the father not having explicitly stated intention for children to be created?” she asked.
Adelaide-based CJ Legal principal solicitor Clare Jobson said that the decision was both a unique and emotional one, hypothesising that there could be interesting ripple effects across the various jurisdictions of Australia.
But, even the case in question still has glaring queries in need of response, she said.
“If, following this case, they implant an embryo, and then there is a subsequent appeal [to a higher court], would a court have the right to determine that the women should terminate the pregnancy? That’s an extremely curly situation, and I would suggest that they would not,” she said.
"That being said, just because there has been a decision to harvest reproductive tissue, does not guarantee that the tissue will become a life, as there are other issues that could occur while in utero."