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Application by fiancé to extract sperm of deceased

On 21 April 2016 an urgent application was brought in the Supreme Court at Brisbane by a fiancé seeking an order authorising the removal and storage of the testes and any spermatozoa from her recently deceased partner.

Sadly, Mr Deane had died the night before when his life support machine was disconnected. His fiancé applied to the court for orders as follows:

  • authorising the removal of the testes and any spermatozoa from Mr Deane’s body;
  • the provision of what is removed to an IVF organisation nominated by her;
  • the carrying out of any blood tests advised by the IVF organisation; and
  • the storage of the testes and any spermatozoa pending a future application to the court for their use.

The question for Burns J was whether the testes and any spermatozoa should be allowed to be removed from Mr Deane’s body in order to determine its future use. This was a question that had to be determined quickly because for sperm and/or testes, to be viable, the sperm and/or testes had to be removed and processed within 24 hours of death.

The evidence before his honour established that both Mr Deane and his fiancé were very anxious to have a child together and had started trying for a child earlier this year.

His honour was firmly of the view that the approach taken by Atkinson J in Re Denman should be followed in this case and that the balance of convenience is strongly in favour of the orders sought.

Adopting the language of the Senior Judge Administrator in KJR v Attorney General for Queensland [2008] QSC 325 his honour concluded that the orders will, permit mature reflection by the applicant whether to proceed with the use of any extracted material and, if an application for use for the purposes of fertilization is made, the orders would ensure that such an application would not be rendered futile through loss of viability of the sperm if it should be held that there is power to grant such relief.

This application highlights the importance of speaking to your partner and/or loved ones in relation to their wishes should they pass away. Unfortunately it is difficult when a person passes away suddenly and unexpectedly to plan for the situation in the above case.

Emergency contact

As there is normally a 24 hour window to these types of applications, it is vital that you seek legal advice as soon as possible.

In an emergency situation like this, please phone our Wills & Estates Associate Jenna Hutchinson on 0405 331 954.

Our Wills and Estates Associate

Over the past 2 years, Jenna Hutchinson has worked exclusively in the area of Succession Law as this is where her passion lies.

Jenna’s clients appreciate her “hands-on” approach that she provides at an especially difficult time in their lives when they lost a loved one.

Jenna always strives to do the best she can for her clients to ensure that their wishes are adhered to,

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