Just before Christmas, the Supreme Court of South Australia ordered that a widow was able to export her late husband’s sperm from South Australia to Queensland so that she could use it for IVF.
The couple, known as Mr and Mrs English (a pseudonym) were a Queensland couple who went to South Australia so that the man could ride a motor bike in a race. That race was his final one. He crashed and died as a result of the race.
The next day, in April 2025, Mrs English applied to the South Australian Supreme Court for an order to retrieve the sperm. She was successful.
The decision just before Christmas allowed her to export the sperm to Queensland.
The case is important, not only for what it says, but what it doesn’t say.
When the application was made in April 2025, it’s likely that the application was not necessary. That’s because South Australia, like every other State and Territory, has laws about human tissue. In South Australia, it’s the Transplantation and Anatomy Act 1993 (SA). Under section 21 a designated officer for a hospital, if the body is in a hospital, may, by instrument in writing authorise the removal of tissue from the body of a person who has died in the hospital or whose dead body has been brought into the hospital for the use of the tissue for therapeutic purposes (other than for transplantation) or for medical or scientific purposes. This is on the basis that the deceased has either consented to the use or had expressed the wish for consented to the removal after their death of tissue from their body for that use, or had not expressed an objection to the removal after their death of tissue from their body for that use, and that the senior available next of kin (typically the spouse) did not object to the removal of tissue.
If the body was not in a hospital, then the senior available next of kin can authorise the removal of tissue on a similar basis.
In both cases, if the body falls within the jurisdiction of the coroner, then the coroner also has to consent.
In April, Justice Gray ordered that:
- The sperm be removed.
- That the process be undertaken at Royal Adelaide Hospital.
- That an appropriately qualified medical practitioner perform the procedure.
- That any sperm or tissue removed from the deceased be stored at an appropriate location as directed by the medical practitioner performing the procedure.
- That any sperm or tissue removed not be used for any purpose at all without an order of the court.
- The parties have liberty to apply at short notice.
Because the order for removal had been made, which determined the storage of the sperm, it was necessary to again apply to the court to enable the export.
The court ordered that Repromed was to transfer directly the sperm to Monash IVF in Queensland on Mrs English’s written direction and to do so within 30 days of that direction.
Mrs English was to pay the costs of the transfer.
Within seven days of the transfer of the sperm, Mrs English was to file an affidavit notifying the court of the transfer. At that point, the earlier order requiring that the sperm be stored in an appropriate location is directed by the medical practitioner performing the procedure was discharged.
The sperm must be used only under the control and supervision of registered medical practitioner of Monash IVF or any registered medical practitioner consulting at Monash IVF.
The sperm upon being received by Monash IVF must be stored at a suitable facility operated by Monash IVF within Queensland.
The sperm must only be used in a treatment procedure or procedures using the sperm to produce an embryo or embryos to be implanted in Mrs English.
The sperm must not be dealt with or used in the future except:
- After 20 December 2026 when section 31 of the Queensland Assisted Reproductive Technology Act 2024 has come into effect, and the sperm may only be dealt with or used in accordance with the terms of that Act, or
- In accordance with any future order of the court.
- At the completion of any treatment procedure or procedures, Monash IVF is to appropriately store any unused sperm until further order and Ms English is to seek further directions or orders from the court concerning any unused sperm or embryos created by treatment procedure or procedures.
- Ms English will be responsible for the fees and charges of Repromed and Monash IVF associated with the above orders.
If Ms English had relied on the provisions of the South Australian Transplantation and Anatomy Act, she would not have had to apply to the Supreme Court in the first place and would not then have had the restrictions on the use of the sperm afterwards.
The treating doctor in Queensland indicated that it was not likely that Ms English would be ready to commence treatment until such time as the Queensland Assisted Reproductive Technology Act 2024 had commenced and it was his practice to ensure that any genetic material is used only after approval has been given by an independent review body as required by the laws of Queensland in any event.
His Honour said [1]:
“In this case, the applicant emphasises that permission is only sought to move the spermatozoa to Queensland, where she lives, with the consequence that any decision about its future use will be made under the regulatory regime in Queensland. As the applicant submitted, Queensland has a new regulatory regime specifically enacted to manage posthumous sperm retrieval. The relevant legislation, the ART Act, was enacted in 2024, and although some of the sections of that legislation have come into effect already, absent any further proclamation, the legislation in its entirety will commence operation by 19 September 2026.[19] The applicant submits that it follows that it is not necessary in this case for the Court to make a sophisticated or detailed assessment of the best interests of any child who may be conceived from that genetic material. The reason for this is that such an assessment will be consequent upon the provisions of the Queensland regime, which it was submitted is likely to come into operation prior to any time at which it was proposed that the spermatozoa would be used. That scheme, once operational, includes a requirement that an independent review body consider a number of matters prior to use of a gamete retrieved from a deceased or unresponsive person. One of these matters is the best interests of the child.
Section 31 of the ART Act provides a code for the way in which gametes which are retrieved from deceased persons are to be dealt with. That section is in the following terms:
(1) An ART provider may use a gamete retrieved from a deceased or an unresponsive person under this division in an ART procedure for the person’s spouse if its use has been authorised by an independent review body under this section.
(2) The independent review body is a body—
(a) that is constituted by 1 or more persons who are not engaged by the ART provider in providing ART services; and
(b) that complies with any requirement prescribed by regulation.
(3) The independent review body must consider the following matters when deciding whether to authorise the use of the retrieved gamete in an ART procedure—
(a) whether the spouse has the capacity to consent to the procedure;
(b) whether the spouse has undertaken appropriate counselling;
(c) the best interests of any child born as a result of the procedure, including—
(i) whether the spouse has the capacity to provide for the child’s emotional, intellectual and other needs; and
(ii) whether the child is likely to have safe and stable living arrangements;
(d) any other matter the independent review body considers appropriate.
(4) A gamete that is retrieved from a deceased or an unresponsive person may be stored by the ART provider until the independent review body decides whether to authorise the use of the retrieved gamete.”
Further [2]:
“Whilst I accept that various safeguards are put in place pursuant to the Queensland legislation, should that come into effect, such that determination of the appropriate use of the spermatozoa will be assessed pursuant to that statutory regime, I also consider that it would be appropriate for the reasons set out by Gray J in Re H, AE (No 2) and Re H, AE (No 3) to impose similar conditions on the use of the sperm to those imposed by Gray J. I accept the reasoning of Gray J in Re H, AE (No 2) and Re H, AE (No 3) and the finding that this Court in its inherent jurisdiction retains control of the use of the sperm. It follows that it is appropriate that the conditions imposed appropriately limit the use of the sperm and do so in a way that ensures that the paramount interests of the child can be properly addressed and protected.”
What does the case tell us?
I have enabled clients to undertake retrievals in Queensland, New South Wales and Victoria without ever having to go to court, using administrative means.
Other lawyers have been inclined to go to court as their first option to then obtain an order to enable the retrieval. Going to court is more expensive, more stressful and typically slower than the administrative process. In Re English, when the matter was filed, the orders were made within two hours of filing.
But before they were filed, affidavits had to be drafted and executed. This typically takes some hours to do and it’s likely that work started the day before to get this done.
Typically, I and my team are able to organise the whole process within four hours (if on a weekday) from commencement to completion of the paperwork (then enabling the doctor and scientist to go about their business). This timeframe includes obtaining coroner’s consent.
Ms English was already pregnant with their first child at the time that Mr English died. I wish her the best of luck with her journey.
[1] At [21]-[22].
[2] At [26].