Health Alert (Australia) - 13 January 2014


In This Issue:

Judgments; Legislation; and Reports.

- Excerpt from Judgments:

South Australia -

16 December 2013 - RE H, AE (No 3) [2013] SASC 196 -

In 2011, spermatozoa was removed from the applicant's late husband (Re H, AE). In 2012, the Court concluded the applicant had established a case for the release of the spermatozoa for In Vitro Fertilisation (IVF) treatment (Re H, AE (No 2)) but before an order could be made, consent should be sought from the Attorney-General for an exemption under the Assisted Reproductive Treatment Act 1988 (SA). The Attorney-General advised he did not have power to enable assisted reproductive treatment in the manner sought, and such treatment would be inconsistent with the policy requirement that a person provide consent for the use of their gametes prior to death.

Unlike South Australia, the Australian Capital Territory (ACT) does not have legislation regulating the provision of assisted productive technology, and the applicant located a clinic in Canberra to perform IVF. In the ACT, the Reproductive Technology Accreditation Committee of the Fertility Society of Australia requires compliance with the National Health and Medical Research Council's Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007. The Guidelines state "Clinics must not facilitate use of gametes to achieve pregnancy … unless … a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes". While Judge Gray was satisfied the applicant had produced sufficient evidence that the deceased wished to have a family with her, it was up to the clinic to make its own determination.

Judge Gray granted the applicant use of the spermatozoa, under the control and supervision of the Canberra clinic.

Please see full alert below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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