In Re H, AE No 2, [2012] SASC 177, a widow sought an order for the removal of sperm from the body of her husband, who had been killed in a car crash. She intended to use the sperm for the purposes of in vitro fertilisation.  

Justice Gray of the South Australia Supreme Court was prepared to recognise that there could be a property right in sperm (in spite of the common law’s traditional rejection of that position). The sperm was not the property of the deceased or his estate, and the medical staff who had extracted it under a previous court order couldn’t say it was theirs either; the only person with a claim to it was the widow. There was a kicker, though: the deceased had not consented to the extraction of the sperm and there were the interests of any resulting offspring to consider, which justified the court’s exercise of its inherent jurisdiction and its control over the uses to which the widow put the sperm. This left the widow in a bind, because South Australia’s Assisted Reproductive Treatment Act had not licensed any clinic in the state to provide the IVF treatment she wanted, and she was probably precluded from going to another Australian state in light of their legislative provisions – leaving her with no option but to seek from the state attorney general an exemption from the South Australian statutory scheme.  

Compare Re the Estate of the late Mark Edwards, [2011] NSWSC 478.  

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