What is IVF and Posthumous IVF?

In-vitro fertilisation (IVF) is a method of assisted reproduction, it is used to treat a range of fertility problems and improves a couple’s chance of falling pregnant. It involves fusion of the egg and sperm (gametes) outside the body, with the intention of creating an embryo that will be later placed back into the woman’s uterus.

Posthumous IVF is IVF that occurs after the death of one genetic parent. This procedure is available in Australia and legal under certain circumstances. However, because each State and Territory has its own legislation there is considerable ambiguity over the legality of posthumous IVF in a couples’ specific circumstances.

What is the process in Victoria?

Where a couple is not already attempting to conceive via IVF prior to one parents’ death, the surviving parent needs to act quickly. To retrieve a deceased partner’s egg or sperm an urgent court order is required.

In Victoria, retrieval is permitted by the Human Tissue Act 1982 (Vic) (where written or oral consent has been provided). Whilst, Victorian courts have allowed gamete retrieval up to 48 hours post-death in rare circumstances, the recommended timeframe for retrieval is 24 to 36 hours after death. This limited window reflects the brief period after death that egg and sperm remain viable for use. Any attempt to retrieve them outside of this short timeframe will likely be rejected, hence time is of the essence!

If a court allows for the retrieval to occur, this does NOT automatically entitle the surviving spouse to use the eggs or sperm obtained for a posthumous IVF procedure. Rather, the specific legislative requirements of the State or Territory must be met. In Victoria, the requirements that must be met to use the retrieved eggs or sperm for posthumous IVF are outlined in the Assisted Reproductive Treatment Act 2008 (Vic). S 46 of the Act requires:

• The treatment is carried out on the deceased person’s partner (or in accordance with a surrogacy arrangement in the case of a deceased woman)
• The deceased person provided written consent for their gametes, or an embryo created from their gametes, to be used in this specific procedure
• The Patient Review Panel has approved the use of the gametes or embryo; and
• The person who is to undergo the treatment procedure has received counselling

If these requirements are not satisfied, a surviving spouse will not be able to undergo posthumous IVF in Victoria.

Application of the law in Victoria

The Victorian legal system very strictly enforces the requirement for written consent in matters of Posthumous IVF. Whilst written consent can be provided in any written form (a will, a consent form, etc.), the consent must expressly outline the specific circumstances of the case.

For example, if a deceased partner only provides written consent for use of embryos formed by their egg or sperm and NOT use of the sperm or eggs themselves (which when combined create an embryo), there would be no consent for a posthumous IVF procedure. This is a VERY strict application of the law. In Victoria there is no discretion to allow for posthumous use of genetic materials in the absence of written consent for the specific procedure.

The strictness of this application can have a devastating implications on surviving spouses who were not prepared for the death of their partner and can leave people with limited legal options, even if they know it is what their partner would have wanted. It can also have a devastating impact on surviving spouses where the written consent provided did not sufficiently cover their circumstances. Hence, it is strongly recommended to seek legal advice when preparing a document prospectively providing consent.

Unfortunately, the strict application of consent laws in Victoria played out in XVT v Patient Review Panel [2018] VCAT 1902. The deceased partner provided written consent prior to their death for his partner to use embryos formed from his sperm and her eggs. But since he did not provide written consent for her to use his sperm to make embryos after his death, the Patient Review Panel denied the surviving spouse’s application for posthumous IVF. This decision was upheld in the Victorian Civil and Administrative Tribunal, which held that:

“Whilst views may differ about whether express written consent to the posthumous use of gametes should be required before a treatment procedure can be undertaken by a surviving partner, Parliament has made the decision that express written consent is required. Care should be taken to ensure that applicants who have already had to deal with the untimely death of a partner, and who are contemplating assisted reproductive treatment involving the posthumous use of their late partner’s gametes, are not given a false hope that approval for treatment can be given where there is a clear statutory bar to it.”

Differences in Posthumous IVF law across Australia

It is worth noting that whilst some jurisdictions, such as NSW, also uphold this strict requirement, there are others which do not. In ACT there are no laws regulating assisted reproductive treatment procedures, and in Queensland, the law provides that so long as there is no reason to believe that the deceased person had expressed an objection to removal of the tissue after death that posthumous IVF would be permitted.

The inconsistency between jurisdictions can add to the distress and confusion surrounding the process of applying for posthumous IVF. In some cases, surviving spouses have had to seek orders permitting them to take their late partner’s eggs or sperm to a jurisdiction that does not require written consent. However, it can be very difficult to have this order granted.

In Victoria for example, ss 36(1)-(3) of the Assisted Reproductive Treatment Act 2008 (Vic) prohibits donor gametes being removed from Victoria if the way and purpose in which the gametes or embryo will be used is inconsistent with how it could be used in Victoria. This may mean that posthumous IVF may not be permitted in another jurisdiction since it would not be allowed within Victoria.

Implications of the current Victorian Law

Posthumous IVF is an incredibly valuable reproductive treatment for surviving spouses. However, in practice, accessing this treatment in Victoria can be difficult because of the strict application of written consent law. Hence, the current state of Victorian law may function as a barrier if couple’s are not adequately prepared with appropriate written consent.

Until Victorian Parliament removes these strict requirement, couples who believe that they will want a child in the future should discuss these issues and consider taking steps to ensure they provide appropriate written consent to be prepared for an unexpected death.

If you would like to discuss posthumous IVF, arranging written consent, or more tailored advice please contact Nicholes Family Lawyers where we are familiar with assisting client with a range of issues.