A West Australian woman has won the right to bring her deceased partner's sperm to the ACT in an attempt to have a baby, with the territory's broad legislation allowing the procedure where other states don't.
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The West Australian Supreme Court decided this week that the 42-year-old woman, identified as GLS in court documents, would be allowed to undergo in vitro fertilisation (IVF) procedures in the ACT after her application to move the sperm had previously been rejected.
The woman's partner, known as Gary in court documents, suffered a heart attack in January 2016, before being taken off life support and passing away on February 3 of that year. He was 53 years old.
While the woman was able to get the help of a fertility specialist to extract the sperm from her partner in the hours after his death, fertility clinics in WA are prohibited from knowingly using sperm from someone who is deceased for IVF or artificial insemination. The ban covers all gametes, a term which includes both eggs and sperm.
The woman brought the civil proceedings last year, after she had applied to the Reproductive Technology Council of Western Australia for permission to move the sperm from WA to the ACT, with her request originally denied by the council. Chief Justice Wayne Martin ruled that not only did she have the right to move her deceased partner's sperm to the ACT, but that she didn't require permission from the reproductive technology council to do so.
The court heard that GLS and Gary had been in a relationship in 2010, and got engaged in 2012, but delayed plans to get married until they had their own home. The judgment also said that although the pair had discussed plans to have children, they wanted to wait until their financial position became more stable.
Gary's son from a previous relationship had given permission for the sperm to be used by GLS, as long as she did not contact the family or ask financial, personal or emotional assistance.
While the case is rare, it is not the first time a woman has gone to court in Australia in order to be able to use her partner's sperm after his death. There have been other applications in courts around the country, and the Queensland Supreme Court is currently considering an application by a woman to use her deceased boyfriend's sperm. Applications to move sperm between states are also rare.
"That really doesn't happen very often at all," Associate Professor Peter Illingworth, medical director at IVF Australia, said.
"I can think one maybe two instances of it happening in the last 10 years, so that's a very uncommon thing to move the sperm of a man who is deceased," Dr Illingworth said.
Dr Illingworth said the case highlights the varying legislation across state and territory jurisdictions in Australia.
"The ACT has very little specific legislation while some of the states, Victoria, New South Wales, South Australia and Western Australia, have quite detailed legislation," Dr Illingworth said.
While this case is a "very rare instance," and that most couples using IVF don't need to choose a different state for their procedure, Dr Illingworth said this wasn't the only type of IVF procedure for which people may choose to go to another state.
"For example, the legislation in New South Wales only allows a sperm donor or an egg donor to create five families, so sometimes if couples in New South Wales wish to use an egg donor who's already created five families they have to take the donor to a different state where the rules are different," he said.
"It's mainly egg donation and surrogacy that people move around for."
While Dr Illingworth said it would be better for if IVF legislation was the same around the country, he concedes this is unlikely.
"Some of the issues involved in this are deeply emotional issues and different populations in different states have quite strong views about how things should be done."
