A 36-year-old woman has won a seven-year legal battle to use her dead husband's sperm to get pregnant. The Victorian Civil and Administrative Tribunal today gave the woman permission to use the sperm as part of IVF treatment in NSW.
The woman, referred to as YZ, was living with her husband in the ACT when he died in a car accident in Victoria in July 1998. She successfully won a court order to extract and freeze a sperm sample from her husband the day after the fatal accident. The woman then fought to use the sperm to get pregnant using IVF treatment, but lost a Supreme Court battle earlier this year after Attorney-General Rob Hulls opposed the request. Justice Kim Hargrave ruled that YZ's request was prohibited by the state's IVF laws.
A subsequent bid to have the procedure done in the ACT failed when the territory's IVF authority rejected her request. But after discovering the procedure was allowed in NSW, YZ went to VCAT seeking permission to take the frozen sperm sample interstate. Following a hearing last month, Justice Stuart Morris today granted permission for the sperm to be transported to Sydney to allow the woman to begin IVF treatment. In his ruling, Justice Morris said the matter did "not involve questions about the legality of proposed conduct, but about the scope, nature and exercise of a discretion to permit the sperm to be taken to another state of Australia to enable its use".
The tribunal was told that YZ wanted to have children, but did not want to begin another relationship, and preferred not to use an anonymous sperm donation. "She wishes to have a child, or children, using her late husband's sperm as she regards him as her life partner and wants him to be the genetic father of her children," Justice Morris said. "I do not find this to be a case where the applicant is motivated by grief. Although the decision she has made will not be the decision of most widows, many widows would choose to move on and find a new partner I accept that her decision is rational and genuine." Justice Morris said it was important that the family of the dead man referred to as XZ support YZ's bid to have his children. He said it did not matter that any child born using the treatment would not have a living father. "It is trite to observe that many children born naturally do not have a father or a loving father, yet still live long and happy lives." "In my opinion, the fact that any child born as a result of the export of the sperm the subject to this proceeding will not have a father or will be conceived from the sperm of a man who is dead is not of major consequence."
The woman will now be able to begin IVF treatment in NSW, but must inform Victoria's Infertility Treatment Authority should she give birth.
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