Embryos
The Human Reproductive Technology Directions 2021 (external site) vests control of an embryo in the surviving partner. This means a woman may be able to use an embryo that had been created before the death of the sperm provider.
This can create issues where the relationship had broken down or if the partner who died had explicitly advised that they did not want an embryos used in the event of their death.
Gametes
In Western Australia (WA) there are laws relating to the posthumous collection of gametes, but the posthumous use of gametes is currently prohibited.
The Human Tissue and Transplant Act 1982 (external site) may permit the posthumous collection of gametes for transplantation or for a therapeutic, medical or scientific purpose where:
- the deceased person had consented to or expressed a wish for the collection; or
- there is no evidence to suggest that the deceased person had an objection to the collection and the senior next of kin consents to the collection.
The Human Reproductive Technology Directions 2021 (external site) prohibits licensed fertility providers from using gametes in an artificial fertilisation procedure after the death of the gamete provider.
Therefore, it may be possible for senior next of kin to consent to the posthumous collection of gametes in some circumstances, however the gametes cannot be used in Western Australia.
Assisted reproductive technology legislation is being reviewed and the WA Government supports further consideration and research related to the posthumous use of gametes or embryos as part of this process.