It’s an Honour
Losing a loved one is terrible. Losing a loved one unexpectedly is so much harder.
I have helped widows in New South Wales, Queensland and Victoria undertake posthumous retrieval. As part of my duty to my clients, I and my team will treat my grieving clients with the utmost respect and empathy. We will take no step that will cause further trauma.
I have helped widows in New South Wales, Queensland, Victoria and Western Australia achieve posthumous use of their late husband’s sperm.
It’s an honour to help widows to be able to use the sperm and embryos created from the sperm. Nothing gives me more joy than to be told by a widow that she has had a child from her late husband’s sperm.
Time is Fleeting
The time for retrieval might be very limited. It could be as short as 24 hours from death, or greater than 72 hours, depending on the person, and conditions in which the body is held.
In the right conditions, my office can put the paperwork together and assemble the team together in 4 hours. If you know that the man will not survive, the earlier you contact me the better. I prefer to know at 9am on a Thursday, for example, that the man is going to die at some stage, than be told at 9pm on a Saturday or 8pm on a Friday that he has died. It is much harder to put everything together in the middle of the night on a weekend, than it is during normal business hours. It can be very hard to find an available doctor or scientist out of hours.
There May Be No Sperm
When a retrieval is undertaken, the man may have lots of healthy (what scientists call “viable”) sperm, or no sperm, or no viable sperm. There is no way of checking in advance, before the decision is made to retrieve.
Assembling the Team
It’s essential to assemble the team to enable the posthumous retrieval to occur. I am aware of cases where lawyers have focused on the court process first, with the result that retrieval was not possible. It is essential to put the horse before the cart, not the cart before the horse.
There are five people who usually have to be assembled (which can at times be very challenging):
| Who is needed | Why |
| The coroner | To give approval, or to say that they do not have jurisdiction. Otherwise, it is an offence to proceed. |
| The spouse or partner (or in most places other senior next of kin) | To give approval, and to sign paperwork. |
| Morgue attendant/funeral director | To open the door to enable the body to be available. |
| A doctor | To do the retrieval. Usually, this will be a fertility specialist who has undertaken retrievals (most haven’t), or a urologist (most haven’t), and in some cases can be an officer of the morgue. |
| A fertility scientist | To take the sperm and tissue away, view it, sort it, and preserve it. The process of viewing, sorting and preserving can take several hours after the retrieval has occurred. |
In most States, one of the people who gives the go ahead to undertake the retrieval is the former spouse or partner of the deceased. They are described in most States as the senior available next of kin. The senior available next of kin has a descending order (with the first being the first in line to make the decision and the last being the last to decide):
- Spouse or partner of the deceased.
- Adult child of the deceased.
- Parent of the deceased.
- Sibling of the deceased.
In the course of a few short hours, it is not uncommon for me or my team to make 80 or 100 phone calls, plus emails, and sometimes texts, to put the team together and enable the retrieval to occur.
If you are considering an urgent sperm retrieval, contact us urgently:
- Stephen Page +61 423 708 009, stephen@pageprovan.com.au
- Bruce Provan +61 434 024 301, bruce@pageprovan.com.au
Where You Are Matters
If the man dies in a hospital, nowhere near an IVF lab, such as most places in the country, then retrieval cannot be undertaken, as there is not a scientist who can take the sperm and preserve it.
Even if the man dies in a big city, there is no guarantee that all the people can be available or coordinated in time to enable the retrieval to occur. For example, in Sydney, none of the major IVF clinics (IVF Australia, Genea, Monash IVF or City Fertility) undertake this work. Only one doctor in the whole of Sydney regularly does this work.
Occasionally, a court order can’t be avoided. For example, in Western Australia, the Supreme Court has complained of having to make orders when designated officers under the Human Tissue and Transplant Act 1982 (WA) (who are empowered to authorise retrieval) have not made themselves available to do so.
In Victoria, concerns by the only body who currently undertakes retrieval has meant that declarations have to be sought from the Supreme Court in order, in effect, to authorise the retrieval.
In some places, the practice is to obtain a court order. However, as a general rule, a court order is NOT required, because there are administrative laws and processes in place to enable retrieval. If a court order is not required, my view is that it should not be obtained. Going to court increases costs, adds to stress, and slows the process.
Using a lawful administrative means of retrieval is in my view a quicker, simpler, cheaper (and lawful) method. In one State, Queensland, following my advocacy, the administrative process is the only method available. In one state, NSW, it is unclear whether the Supreme Court has jurisdiction, though orders have been made.
There can be pushback from:
- The hospital, including its donor team (if the man was a tissue donor)
This pushback must be addressed, and quickly, to enable the retrieval to occur. This may involve direct communications by me by phone or email, or it may be a decision to move the body to another location, away from the hospital. It will depend in part on local factors.
When considering retrieving sperm, it is important to consider where and when that sperm may be able to be used. Just because sperm has been able to be retrieved does not mean that the sperm can be used. There are barriers in most of Australia to using sperm that has been posthumously retrieved. Often, it is necessary to export that sperm. Within Australia, that sperm will typically be exported to Queensland or the ACT. It may need to be exported overseas.
If the sperm is already in storage before death and written consent has not been given by the deceased to its posthumous use, then the only places within Australia that posthumous use is currently available are the ACT and Queensland, but posthumous use may soon be available in Western Australia.
Different Laws For Different States
There is not one uniform law Australia-wide. Each State and Territory has its own laws. There can be subtle differences in the law in each place, which must be mastered when starting the process.
No Means No – Usually
If the man objected to posthumous use or posthumous donation, then this usually means that posthumous retrieval would be unlawful. However, there is an allowance in some States (for example in NSW) for him to have objected- and then changed his mind. His most recent view is the one that applies. The devil can be in the detail.
This is a Tricky Ethical Area
Even if all the sun, moon and stars seem in alignment to proceed, someone may object on ethical grounds. While that ethical objection can be addressed, and in doing so, overcome, sometimes it cannot be.
Having Family Support Helps
Although not usually a legal requirement, it usually helps if the parents of the deceased are in support of posthumous retrieval. Usually, by the time I’m called, the parents have either suggested posthumous retrieval, or are strongly in support. Sometimes, if the man and the partner were not married or living in a de facto relationship, the parents have to authorise (or agree) to the retrieval occurring. If in doubt, ask me.
Putting Your Affairs In Order Helps
It helps immensely if there are clear written directions from the man signed by him before he dies about what is to happen with the sperm. If it is possible to have some planning, this will save time and money, and make the process a lot less stressful. In one case, I told the widow that sperm retrieval could not be done, because, due to distance, the team could not be assembled. Her husband had died from cancer. She said:
“If only I had started earlier. He was expected to die in two weeks.”
If the couple have undertaken IVF, it is very helpful if posthumous use is clearly consented to in the forms for the IVF clinic.
When there has been a sudden unexpected death, this planning is unable to occur. Men have died unexpectedly from accidents (car, skateboard, surfboard, drug overdose), heart attack or stroke, or suicide.
State By State Guide
A court order is required when considering posthumous retrieval or posthumous use. To store or use sperm posthumously, an order from the Supreme Court of the ACT is needed. Therefore, posthumous retrieval requires a Supreme Court order (to store). It is unclear as to whether or not the Supreme Court is of the view that it has jurisdiction to make an order authorising the retrieval, or whether the retrieval occurs by administrative means under the Transplantation and Anatomy Act 1978 (ACT).
If the Transplantation and Anatomy Act applies, then the authorisation to retrieve has two or three steps:
- Coroner consents (or says that they do not have jurisdiction)
- If the body is in a hospital:
- the designated officer authorises, provided that the deceased had not objected, and
- the senior available next of kin (typically the spouse or partner of the deceased) also authorises.
- If the body is not in a hospital, the senior available next of kin authorises.
The person who applies to the Supreme Court must be the domestic partner (spouse or de facto partner) of the deceased.
The order that is necessary is either for:
- Use of the gametes in the provision of ART treatment to the partner, and/or
- Storage of the gametes for the authorised use.
The court must consider the following:
- Whether the domestic partner has capacity to consent to the provision of the treatment.
- Whether the domestic partner has undergone appropriate counselling.
- The best interests of any children to be born as a result of the treatment, including:
- Whether the domestic partner has capacity to provide for the child’s emotional, intellectual and other needs, and
- Whether the child is likely to have safe and stable living arrangements.
- Whether the gamete provider expressly objected to posthumous use of the gametes.
- Whether the gamete provider is likely to have supported posthumous use of the gametes and the provision of ART treatment to the domestic partner.
- Any other matter the court considers appropriate.
Posthumous retrieval can occur without a court order being needed.
Posthumous use is only possible if the deceased provided written consent to posthumous use.
On the face of the Assisted Reproductive Technology Act 2007 (NSW), it is an offence for an IVF clinic in New South Wales to provide the sperm to anyone else or to send the sperm out of New South Wales. However, in a series of cases in the Supreme Court, starting with Re Edwards [2011], has held that the widow owns the sperm and can export the sperm from New South Wales.
Typically, the sperm has been exported to either the ACT or Queensland.
Some lawyers apply to the Supreme Court for a retrieval order. I have never done so. I have obtained retrieval for my NSW clients by administrative means under the Human Tissue Act 1983 (NSW).
The NSW Chief Health Officer has decreed that hospital’s designated officers are not to authorise posthumous sperm retrievals. The widows are, according to the CHO, required to apply for a retrieval order from the Supreme Court. Various Supreme Court judges have cast doubt on whether they have the jurisdiction to make a retrieval order. In those cases, my clients have moved the body to a morgue or to a funeral home- and enabled the retrieval to occur there.
My law firm, Page Provan, has partnered with Dr Derek Lok and Connect IVF in undertaking posthumous retrievals in Sydney. Dr Lok is the only doctor who undertakes retrievals regularly. Connect IVF is the only clinic that regularly stores sperm retrieved posthumously.
There have been Supreme Court judgments either stating that the Court does not have jurisdiction to make a retrieval order, or casting doubt on whether it can.
Following representations made by me, posthumous retrieval is governed by section 29 of the Assisted Reproductive Technology Act 2024 (Qld):
“(1) A gamete may be retrieved from a deceased or an unresponsive person by, or under the supervision of, a medical practitioner for use in an ART procedure for the person’s spouse.
(2) The retrieval of the gamete from the deceased or unresponsive person is authorised only if there is evidence that—
(a) the person had consented to the retrieval of their gametes for use in an ART procedure for their spouse; or
(b) the person—
(i) had not expressly objected to the posthumous use of their gametes for use in an ART procedure for their spouse; and
(ii) is likely to have supported the posthumous use of their gametes for that purpose.
(3) The gamete of a deceased or an unresponsive person that is retrieved under this division is not a donated gamete at the time of its retrieval.”
Spouse includes a de facto partner.
There can be challenges in regional cities assembling all the team members.
Due to the efforts of Dr Douglas Feinbloom at Caboolture Hospital (with assistance from Kate Cooper of Monash IVF and me), there is now a quick guide to donor teams in Queensland hospitals to enable them to facilitate both the donation and the posthumous retrieval.
Posthumous use before 20 September 2026
Before 19 September 2026, posthumous use in Queensland is governed by the National Health and Medical Research Council Ethical Guidelines. These say:
“Regardless of the relevant individual’s position on the posthumous use of their stored gametes or embryos, there may be a legal impediment to such use in some States or Territories that a court order may first be required.
8.22.1 Where permitted by law, clinics may facilitate the posthumous use of stored gametes or embryos to achieve pregnancy, if:
-
- The deceased person left clearly expressed directions consenting to such use following their death (see paragraph 4.6.4).
- The request to do so has come from the spouse or partner of the deceased person, and not from any other relative.
- The gametes are intended for use by the surviving spouse or partner.
- The conditions in paragraph 8.23 are satisfied.
8.22.2 Where the deceased person has left clearly expressed directions that object to the posthumous use of the stored gametes or embryos, clinics must respect the objection and not facilitate the posthumous use of the stored gametes or embryos to achieve pregnancy.
8.22.3 Where the deceased person has not left clearly expressed directions regarding the posthumous use of their stored gametes or embryos, where permitted by law, clinics may facilitate the posthumous use of stored gametes or embryos to achieve pregnancy if:
-
- The request to do so has come from the spouse or partner of the deceased or dying person, and not from any other relative.
- The gametes are intended for use by the surviving spouse or partner for the purposes of reproduction.
- There is some evidence that the dying or deceased person would have supported the posthumous use of their gametes by the surviving partner, or at the very least, there is no evidence that the deceased or dying person had previously expressed that they do not wish this to occur.
- The surviving spouse or partner provides valid consent.
- The conditions of paragraph 8.23 are satisfied.
8.23 Allow sufficient time before attempting conception and/or pregnancy.
8.23.1 Given the enduring consequences of the decision, clinics should not attempt conception or a pregnancy using stored gametes or embryos unless:
-
- Sufficient time has passed so that grief and related emotions do not interfere with decision-making.
- In addition to the requirements outlined in paragraph 4.1, the surviving prospective parent (the spouse or partner) is provided with sufficient information to facilitate an accurate understanding of the potential social, psychological and health implications the proposed activity for the person who may be born.
- The surviving prospective spouse (the spouse or partner) has undergone appropriate counselling.
- An independent body has reviewed the circumstances and supports the proposed use.”
Posthumous use from 19 September 2026
From 19 September 2026, posthumous use, when there has not been a retrieval, requires the written consent of the deceased.
From 19 September 2026, where there has been a posthumous (or unresponsive) retrieval, the Assisted Reproductive Technology Act 2024 (Qld) will require that an independent body authorises the use. The makeup of that independent body is to be determined by a regulation. That regulation is yet to be published. It is yet to be seen whether posthumous use after the change occurs will be viable in Queensland or, whether it will be necessary for widows in Queensland to export sperm to the ACT.
Posthumous retrieval is available under the Transplantation and Anatomy Act 1983 (SA).
The Supreme Court has said that it has jurisdiction to make an order for posthumous retrieval as it did in Re English (2025).
The Assisted Reproductive Treatment Act 1988 (SA) requires that there is written consent for posthumous use. South Australian widows in the past have exported sperm to the ACT or Queensland.
Posthumous retrieval is possible under the Human Tissue Act 1985 (Tas). However, I am not aware it has ever occurred. It is unlikely- see below- that posthumous retrieval could be undertaken in Tasmania.
The two IVF clinics in Tasmania do not undertake posthumous use, due to ethical objections. Therefore, the sperm will need to be exported to the ACT or Queensland.
Posthumous retrieval is possible under the Human Tissue Act 1982 (Vic). However, none of the major IVF clinics currently undertake posthumous retrieval. The Supreme Court has made orders authorising retrieval.
Recently, the Supreme Court has ruled that it is lawful to undertake posthumous retrieval under the Human Tissue Act. In another recent case, no doctor could be found to undertake the retrieval, but an officer at the morgue was prepared to undertake the retrieval.
The Assisted Reproductive Treatment Act 2008 (Vic) requires, among other things, that the man consented in writing to posthumous use. Patient Review Panel approval is also required. When there has been posthumous retrieval, PRP approval cannot be obtained, with the result that the sperm is exported, either to the ACT or Queensland. The sperm is not considered donor sperm (which would require approval for export).
Posthumous retrieval can be undertaken under the Human Tissue and Transplant Act 1982 (WA).
However:
- Despite the vast size of WA, all IVF clinics in WA are in Perth. Therefore, the retrieval can only occur in Perth.
- Doctors have not authorised, requiring the Supreme Court to make orders, as seen in a recent case.
There is currently a ban under the Human Reproductive Technology Directions 2021 (WA) to posthumous use. Western Australian widows have to export the sperm interstate to the ACT or Queensland.
Some years ago, the then regulator, the Reproductive Technology Council of Western Australia, opposed the export by a widow, saying that the sperm of her former partner (who had committed suicide) was donor sperm. The sperm had been retrieved from his body posthumously. Being donor sperm, the regulator said the regulator’s approval was needed to export and the regulator would not give approval.
The Supreme Court in GLS v Russell-Weisz held that the sperm of the man was not donor sperm and therefore could be exported by the widow without consent of the regulator.
In late 2025, the Western Australian Parliament enacted the Assisted Reproductive Technology and Surrogacy Act 2025 (WA). This will allow posthumous use with the express consent of the deceased. Where that expressed consent is not given, the sperm will need to be exported, either to the ACT or Queensland, or overseas.
The Assisted Reproductive Technology and Surrogacy Act 2025 (WA) is to be implemented over 18 months. It is unclear when the posthumous use provisions are to commence.