Sperm removal and dead or dying patients: a dilemma for emergency departments and intensive care units

Sarah L Middleton and Michael D Buist
Med J Aust 2009; 190 (5): 244-246. || doi: 10.5694/j.1326-5377.2009.tb02384.x
Published online: 2 March 2009
Case scenario 1

A 42-year-old man sustains major head injuries in a motor vehicle accident in rural Victoria. The ambulance service takes him to the nearest hospital but he dies shortly thereafter. The police contact his 34-year-old wife and inform her of her husband’s death. The wife rings the hospital and asks that sperm be extracted from her husband. She explains that she has been trying to become pregnant and has recently been referred for in-vitro fertilisation treatment.

Case scenario 2

A 28-year-old man is admitted to an intensive care unit after an open lung biopsy for an infiltrative interstitial lung disease. The biopsy shows alveolar carcinomatosis. After 10 days of aggressive intensive-care support, the family agrees that medical treatment should be withdrawn. At the conclusion of the family conference, the patient’s 32-year-old wife requests that sperm be harvested. She has the support of the patient’s family. The patient is a registered organ donor.

Regulating consent for sperm harvest on a patient’s behalf

When a Victorian patient is incapable of providing consent to medical treatment (including “any medical or surgical procedure”) and has left no prior directive, the Guardianship and Administration Act 1986 (Vic) governs who may give consent on the patient’s behalf. If no person has been formally appointed as a substitute decisionmaker, either by the patient or by the Victorian Civil and Administrative Tribunal (VCAT), then ordinarily a wife can give consent. It seems likely, however, that sperm removal constitutes a “special procedure” (“any removal of tissue for the purposes of transplantation to another person”), in which case VCAT must provide the necessary consent.

Any decision to extract sperm must be in the patient’s “best interests”. Normally an assessment of best interests would envisage some proposed treatment for a medical condition, and the statutory criteria reflect this. However, sperm removal is of no medical benefit to a dying man. The statutory criteria of the Victorian Guardianship and Administration Act do include “the wishes of the patient, so far as they can be ascertained” and “the wishes of any nearest relative or any other family members of the patient”. Yet, without clear evidence that the patient would have consented to the use of his sperm for posthumous conception, it would be difficult to argue that the procedure was in the patient’s, as opposed to the wife’s or family’s, best interests.

Being a registered organ donor is insufficient evidence that the patient would have wanted to father a child after his death. As Schiff explains, “controlling the fate of gametes is different from — and more significant than — controlling the fate of cadaveric organs, because procreation is central to an individual’s identity in a way that organ donation is not”.7

Elsewhere, only in Queensland — Guardianship and Administration Act 2000 (Qld) — does sperm harvest (ie, “removal of tissue from the adult while alive for donation to someone else”) require consent of the relevant statutory guardianship body. As the procedure is not necessary to prevent danger to the recipient’s life (which is a stipulation of the Act), consent should be declined. In the Australian Capital Territory and the Northern Territory, lawful consent can only be given by a legally appointed guardian — Guardianship and Management of Property Act 1991 (ACT); and Adult Guardianship Act 1988 (NT). A doctor acting upon an informal consent by a wife could be liable for trespass. In the remaining states and territories, consent for sperm harvesting can be given by the man’s wife — Guardianship Act 1987 (NSW); Guardianship and Administration Act 1993 (SA); Guardianship and Administration Act 1995 (Tas); and Guardianship and Administration Act 1990 (WA). This raises a potential problem of conflict of interests. Clearly, none of the relevant legislation has been drafted with sperm harvesting in mind.

In no jurisdiction is this procedure expressly identified as one requiring consent from a statutory body. This is surprising when the same legislation prevents a wife from giving consent to a procedure that would deprive a man of the ability to procreate (eg, sterilisation).

The best interests considerations either focus too narrowly on medical treatment for a condition (as with the Guardianship and Administration Act), or focus too broadly on non-medical matters that are not relevant to a dying man. The only criterion of general relevance is the wishes of the patient, and the weight given to this factor varies considerably from jurisdiction to jurisdiction.


It is a paradox that sperm may be legally harvested in Victoria, but cannot lawfully be used unless exported to another jurisdiction. The Victorian Law Reform Commission has recommended that Victorian law be amended to remove this anomaly and to strengthen the requirements around written consent.8 The likely practical effect of these proposed reforms will be fewer sperm harvests. The key recommendations affecting the medical profession are:

Although the Victorian Government has indicated its intention to implement these recommendations, only the third recommendation is provided for under the Assisted Reproductive Technology Act.

The issue of consent

Most agree that a man’s consent should be a legal precondition to the use of his sperm for posthumous conception. As Bennett argues:

Schiff agrees, explaining, “when it occurs without the person’s consent, it deprives an individual of the opportunity to be the conclusive author of a highly significant chapter in his or her life”.7

However, debate surrounds the issue of how consent should be proved and, in practice, as shown here, Australian jurisdictions differ in the level of proof required. The problem with requiring written consent is that it would be rare for a husband to leave any kind of advance directive, unless the couple had been undergoing fertility treatment, or there was a diagnosis of a terminal condition. This has led VCAT to comment:

Yet, there are difficulties with the notion of implied consent in this context. Evidence that the deceased man intended to have children or was actively trying to conceive a child at the time of death does not, of itself, indicate that he would have desired to conceive a child after his death. As the Supreme Court of Victoria noted:

The benefit of written consent is that it provides “an unambiguous and administratively feasible standard to determine when posthumous use should be permitted”.8 It operates as a safeguard to ensure that the documented wishes of the deceased are respected. It may also assist a child to deal with possible concerns he or she might have about having been conceived in these circumstances.8


Australian doctors may harvest sperm from a dead or dying man provided that lawful consent is obtained, whether from a guardianship body, a legally appointed guardian or a wife (Box). However, whether the sperm can be used in a fertilisation procedure without the man’s written consent is another question altogether. In Victoria, New South Wales, South Australia, and Western Australia, legislation prohibits use of the sperm, and in the remaining jurisdictions NHMRC guidelines (at least in theory) provide for the same result.

This mismatch between the ability to harvest sperm and the inability to use them represents a failure by Australian states and territories to ensure a logical approach to this issue. The recent Victorian Law Reform Commission recommendations are to be commended in their attempt to streamline the law to make a man’s consent the cornerstone of decision making at each tier of the process. Thus, if sperm cannot be lawfully used in the absence of consent by the man, sperm should not be able to be lawfully harvested.

  • Sarah L Middleton1
  • Michael D Buist2

  • Monash University, Melbourne, VIC.


Competing interests:

None identified.


remove_circle_outline Delete Author
add_circle_outline Add Author

Do you have any competing interests to declare? *

I/we agree to assign copyright to the Medical Journal of Australia and agree to the Conditions of publication *
I/we agree to the Terms of use of the Medical Journal of Australia *
Email me when people comment on this article

Online responses are no longer available. Please refer to our instructions for authors page for more information.