Page 10 - FSANZ Update Spring 2022

Navigating the complex and emotional
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Complex legal, ethical, medical, psychological and social issues relating to posthumous conception came into sharp focus at the 2022 FSANZ conference in Sydney.
Medical and family law specialists addressed challenges and opportunities in posthumous assisted conception using sperm or eggs from a partner who has suddenly died.
While controversial, posthumous assisted conception does occur in Australian fertility clinics, but only through navigating a maze of complicated legal and ethical considerations that in some cases have required urgent Supreme Court orders to proceed.
In these circumstances, surviving partners have had to deal with their grief while considering whether to try to conceive using a dead loved one’s gametes. Other issues they confront include the feelings of extended family members and wider social judgements about conception in this way.
On top of all these issues is the longer-term psychological well- being of a child who may be born using sperm or eggs from a mother or father who died prior to their conception.
One of the speakers at the FSANZ conference was Queensland- based Dr Jennifer Gaffney, an anaesthetist with experience in intensive care and discussions relating to organ donation.
Apart from her medical perspective, Jennifer presented powerful personal experiences as she went to the Supreme Court in Brisbane three years ago to gain permission to use sperm from her deceased husband to conceive their second child as a sibling for the couple’s first-born son.
Just hours before her husband, Daniel, died suddenly from a heart attack at the age of 38, Jennifer had been meeting with Brisbane fertility specialist Dr Clare Boothroyd to start the process of hormone treatment to try for another baby.
Daniel’s sperm was extracted the day after he died, and a coroner gave verbal consent for a medical team to remove testicular tissue from his body to be placed in frozen storage.
Jennifer then applied to the Supreme Court to gain permission to use the sperm for IVF and it was approved with the couple’s second son born in October 2020.
While the Supreme Court decision was reported in the media at the time, Jennifer has avoided the public spotlight primarily to protect the future privacy of her toddler son and his five-year- old brother.
However, she agreed to address the FSANZ conference in the hope that her story will encourage couples to discuss the issue of posthumous conception in the event of the death of a partner.
“It was humbling and humiliating to have to go to court for permission to do this with sperm from the man I dearly loved,” Jennifer explained.
An issue that needs to be addressed more effectively by the medical and legal professions and society in general
“I also had to ask permission from my mother-in-law to proceed, and I was blessed to have her exceptional support in my efforts to provide a sibling for our first son. We had been planning to have a second child and that was a very strong part of my motivation to proceed.”
Jennifer said most of her friends were members of the medical profession, and while they offered her wonderful support after Dan’s sudden death, not one of them suggested sperm retrieval because it was an issue they had not encountered.
“Dan and I had been together for 12 years, and married for five years,” she said. “We were always very particular in our planning. That’s why we had written a will. But the thought of including consent for posthumous conception in the event of one of us dying was never a consideration.
“It did not cross my mind that it was even possible. In the hours after Dan’s death, it was my doctor, Clare Boothroyd, who called to suggest extracting his sperm.
“Initially I rejected the idea because it was too overwhelming to contemplate. However, a friend convinced me to reconsider, and I will be forever thankful to her and Clare for supporting me through the process and making our lives so much fuller.
“I recall a lawyer suggesting that I may not need to gain court approval to access Dan’s sperm, but in the throes of my grief I needed certainty, not only for myself but for the child that may be born from posthumous conception.
“I am not the only one who has been on this very emotional journey, and I feel it is an issue that needs to be addressed more effectively by the medical and legal professions, and society in general, to make posthumous conception an easier path to navigate.
“I encourage couples to consider this issue as they would with organ donation in the event of sudden death. Written consent about access to gametes would make intentions clear.
“I was already engaging with a fertility clinic to prepare to conceive, but it should be recognised that the majority of couples in normal circumstances do not require assisted reproduction when considering starting a family.”