A 42-year-old Perth woman has won the right to take sperm extracted from her dead partner to the ACT where she hopes to become pregnant.
The woman had been in a relationship with the 53-year-old man for six years in 2016 when he suffered a sudden heart attack, never regained consciousness and was taken off life support after being declared brain dead.
The WA supreme court heard they planned to eventually marry and have children but had limited financial means and housing struggles, so decided to wait until they had their own home.
He’d proposed and given her pewter baby trinkets for their first child along with a set of the classic children’s book series The Wind in the Willows.
He’d even suggested freezing his sperm because his father and uncle had died at relatively young ages, and he had a fear of dying young, too.
So shortly after his death, she arranged for his sperm to be extracted and stored, which is allowed under WA legislation.
However, knowingly using or authorising the use of gametes, which include sperm and eggs, in an artificial fertilisation procedure after the death of the gamete provider is prohibited in WA but it is allowed in the ACT.
Chief Justice Wayne Martin has now ruled the woman has the right to direct the clinic to transfer the sperm and does not need the approval of the Reproductive Technology Council of WA to make those directions.
The Greenstone Legal director, Rein Squires, said assisted reproductive technology laws in WA were quite complex and it was unfortunate such laws were not consistent nationally.
“This is not the first case where the applicant has tried to get sperm across to the ACT where the laws are a little bit more liberal,” Squires told 6PR.
In his judgment, Martin said it was tragic the couple were just about to overcome their housing difficulties when the man died.
The woman’s purchase of a two-bedroom unit was settled later that month.