Grieving family’s baby battle
Woman loses legal bid to get pregnant with dead partner’s sperm, reports Jo Lines-MacKenzie.
A family’s battle to stop their dead son’s partner from having his baby is over.
The Queensland Supreme Court ruled on November 6 that Tony Deane’s sperm be destroyed – ending a two-year battle for his Hamilton-based parents Gaye and Phil.
Tony, a father of one, died by suicide in April 2016 in Australia, just months after moving for a new relationship with Leith Patteson, then 43.
While Tony was on life support Patteson sought court permission to take his sperm, claiming they had been trying for a child. The court ruled the sperm be stored with an IVF organisation pending a future application by Patteson.
She subsequently withdrew her bid, signing an affidavit saying she wasn’t in a position to have a baby.
The family were against the claim from the beginning and felt pressured by the court action, Gaye Deane said.
‘‘She said that we couldn’t get the body back if we didn’t give permission for her to get the tissue removed.
‘‘At that time the main thing was to get Tony home. It was very hard to be given an ultimatum when we have just switched Tony’s life support off.’’
The couple can’t put a dollar figure on how much they’ve spent on the two year battle, with their lawyer working much of the time pro bono.
Laws on sperm use and retrieval from deceased men vary from state to state but Queensland has no laws governing the issue. This year, in a landmark case, Ayla Cresswell became the first woman in the state to win the right to take and use her late partner’s sperm, with the support of his parents.
Such cases are rare in New Zealand, but in December last year the High Court ruled a woman could apply to the health ministry’s Ethics Committee on Assisted Reproductive Technology for approval to have a second child with her late partner. The woman had sought urgent permission to remove and freeze his sperm 48 hours after his death, and the court ruled it could be done while she applied to be able to use it.
Buddle Findlay senior solicitor Emma von Veh said the law in New Zealand was complicated, especially if there is no informed consent for the use of the sperm.
The person wishing to use the sperm without the deceased’s consent has to apply to the ethics committee, which must follow guidelines that have been issued by the Advisory Committee on Assisted Reproductive Technology.
This committee has stated that the use and storage of a deceased’s sperm without his prior consent is ‘‘ethically unacceptable’’.
In July the Government announced a review of the guidelines.
They may change to allow people who have retrieved the sperm of deceased people to use it without specific consent in the future, von Veh said.
It was a good idea for men to make their wishes explicit in their will. ‘‘The more specific you are, the more likely it will be accepted, so provide detail about how you would like it used if you can.’’