1. Harvesting sperm after death – who decides and how?Page 1 Harvesting sperm after death – who decides and how? July 2013

2. Harvesting sperm after death – who decides and how?Page 2 Outline Legislation governing the harvesting of sperm Case law on harvesting of sperm Legislation governing the storage and use of sperm Decision making principles

3. Harvesting sperm after death – who decides and how?Page 3 Legislation governing the harvesting of sperm All Australian States and Territories have legislation which governs the taking of tissue after death Legislation allows for the ‘designated officer for a hospital’ to authorise the removal of ‘tissue’ from the body of a deceased person located at a hospital in certain circumstances (see, e.g. section 26 of Human Tissue Act 1982 (Vic); section 23 of Human Tissue Act 1983 (NSW))

4. Harvesting sperm after death – who decides and how?Page 4 Legislation governing the harvesting of sperm Generally includes the conditions that: –The tissue is removed for medical or scientific purposes; –The deceased had consented to the removal, or where there was no such consent, the senior available next of kin consents (and there was no reason to believe that the deceased objected to the removal) Authorisation by the designated officer is subject to the consent of the Coroner if the death is reportable to the Coroner Offence punishable by fines and/or imprisonment for removing sperm without authorisation

5. Harvesting sperm after death – who decides and how?Page 5 Legislation governing the harvesting of sperm Consideration of key terms by the Courts: ‘Tissue’ includes sperm (in relation to removal after death) ‘Medical purpose’ includes assisting pregnancy through an IVF procedure See: AB v Attorney-General [2005] VSC 180; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C [2013] WASC 3; Y v Austin Health [2005] VSC 427

6. Harvesting sperm after death – who decides and how?Page 6 Case law on harvesting of sperm Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C [2013] WASC 3 Court found that hospital’s ‘designated officer’ may authorise removal of sperm under section 22 of the Human Tissue and Transplant Act 1982 (WA) Per Edelman J ‘In future the most efficient procedure to follow.. would be for the request… to be directed to the designated officer…’ (of the hospital) Y v Austin Health [2005] VSC 427 Section 26 of HTA allowed ‘designated officer’ for a hospital to remove tissue from a deceased person for ‘medical purposes’ Removal of sperm from a deceased person for the purpose of assisting another person to become pregnant through IVF was a ‘medical purpose’

7. Harvesting sperm after death – who decides and how?Page 7 Case law on harvesting of sperm Re H, AE [2012] SASC 146 Widow made an application to the Supreme Court of SA to permit removal and storage of sperm of deceased husband- so as to leave open the possibility of her conceiving children Court noted section 21 of the Transplantation and Anatomy Act 1983 (SA) which allowed a designated officer for a hospital to authorise removal of tissue (including sperm) for a medical purpose However, Court satisfied that making order was within its inherent jurisdiction - further ordered that any sperm removed not to be used for any purpose without an order of the Court

8. Case law on harvesting of sperm Re H, AE (No. 2) [2012] SASC 177 Prima facie case for possession of sperm made out – following Edwards [2011] NSWSC 478 In its inherent jurisdiction, Court retains control of use of sperm - may not be used lawfully in SA Exemption should be sought from Attorney General per s. 9 of SA ART legislation Harvesting sperm after death- who decides and how?Page 8

9. Is it sensible for the hospital to decide? Is human tissue legislation designed for this purpose or just convenient? Senior available next of kin may not be a domestic partner – for instance, a parent or child. In Victoria, at least, the removal could proceed without authorisation of any person other than the designated officer ( section 26 of Human Tissue Act ) Permissive legislation– designed for research and organ donation - ALRC Report: Human Tissue Transplants 1977 Acts generally early 1980s – was posthumous use envisaged? Cf. provisions relating to donations for living people (semen excluded) - ? Because IVF developing? Harvesting sperm after death – who decides and how?Page 9

10. Storage of sperm Could a hospital store extracted sperm? Legislation in WA requires that sperm must not be kept except pursuant to a licence ART providers in NSW must be registered –Storage of gametes is an ART service NHMRC guidelines state that clinics must not store gametes from a deceased person unless there are clearly expressed and witnessed directives from the deceased consenting to the posthumous use of their gametes Other States – possibly, but may not have the expertise Harvesting sperm after death- who decides and how?Page 10

11. Harvesting sperm after death- who decides and how?Page 11 Legislation governing the use of sperm 4 Australian States have legislation that specifically regulates & monitors ART clinical practice and controls ART research –Victoria, NSW and SA – legislation allows use of a deceased’s sperm in a fertilisation procedure where certain conditions are met –Western Australia has an outright prohibition on posthumous use of sperm

12. Legislation governing the use of sperm Examples - ART provider cannot provide treatment unless conditions including the following are met (differ under NSW, Vic and SA legislation): Examples: Assisted Reproductive Technology Act 2007 (NSW): Deceased consented to use of sperm after his death; and Woman receiving treatment provides written consent Assisted Reproductive Treatment Act 1988 (SA): The minister must impose conditions on a person registered to provide ART including preventing a person to provide ART except if the donor of relevant human semen has died and before his death: –the semen was collected; and –the donor consented to the use of his semen after his death; and –any directions in relation to the use are followed Harvesting sperm after death- who decides and how?Page 12

13. Harvesting sperm after death- who decides and how?Page 13 Legislation governing the use of sperm In States and Territories without ART legislation NHMRC Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research will apply to ART clinics Compliance with Guidelines is a key element in accreditation of ART clinics, but not legally binding ( the RTAC Code provides an exception with direction from a HREC)

14. NHMRC Guidelines Guidelines (section 6.15) provide ART clinics must not use sperm unless conditions including the following are met: –Deceased left clearly expressed and witnessed consent; and –The prospective patient received counselling about the consequences of such use ; and –The use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents. The NHMRC declared the use of gametes harvested from cadavers as ethically unacceptable and a practice that should be prohibited in 1996 ( rescinded guidelines ) Harvesting sperm after death- who decides and how?Page 14

15. Harvesting sperm after death- who decides and how?Page 15 Hospital decision making? Court applications to remove sperm from the deceased are necessarily urgent to ensure viability of the sperm Recent cases appear to encourage harvesting of sperm in accordance with human tissue legislation and as authorised by designated officers for a hospital, without need for a Court order However the ability to store and use the sperm in ART is more limited Should the limitations on storage and use be a consideration when deciding whether to authorise harvesting – or, should the designated officer act as if it were an urgent interlocutory injunction – as per Courts?

16. Harvesting sperm after death- who decides and how?Page 16 Practicalities Where sperm is harvested, subsequent issues arise as to: –Willingness of hospitals /ART providers to perform extraction –Willingness to store after extraction (without court order) –Policies of ART providers - commonly require written consent or court order –Ability of partner of deceased to use sperm under legislation/guidelines

17. Codes of conduct or guidelines for hospitals/applicants - example Queensland Health has released guidelines for removal of sperm from deceased persons for IVF through Forensic and Scientific Services –The Guidelines are endorsed by the State Coroner & Chief Forensic Pathologist –A person (applicant) seeking sperm removal for IVF should engage a solicitor to make an urgent application to the Queensland Supreme Court for orders authorising the removal –The applicant should also engage an IVF clinic to carry out the removal, processing and storage of sperm –A separate application may be required authorising the use of the stored sperm in an IVF procedure Harvesting sperm after death- who decides and how?Page 17

18. Harvesting sperm after death- who decides and how?Page 18 Decision making principles Hospitals require, at least, a policy framework: –? Internal polices based on legislation/agreements with ART providers – basis for policy (?) –? Reproductive Authorities and Councils –? NHMRC –? Colleges – Urology/Gynaecology – ? Health Departments

19. Legislative change? Prefer legislative clarity –Limit human tissue legislation E.g. consent to use required, or evidence of such consent (per NHMRC guidelines) Limit release to domestic partner? –Exclude from human tissue legislation Expand scope of ART legislation Harvesting sperm for ART is a regulated procedure Use provisions therefore apply to harvesting Harvesting sperm after death- who decides and how?Page 19

20. Harvesting sperm after death – who decides and how?Page 20 Contact Details Claudia Hirst Giovanni Marino Phone: 03 9865 1340 claudia.hirst@healthlegal.com.au giovanni.marino@healthlegal.com.au