In the matter of KD

At the time of completing their consents for the IVF process, CT and KD had independently answered questions concerning the use of their genetic material and embryos after their death by expressing a preference for such items to be destroyed. As such, there is no consent available from CT for the use of the embryo that remains stored at Genea.

Section 34 of the ART Act restricts the use of the frozen embryo unless a court order is made under s 37 authorising its posthumous use. Section 34 provides: 34 Use of gametes or embryos in ART treatment (1) An ART provider commits an offence if— (a) it provides ART treatment to a person using a gamete; and (b) the gamete is used without the gamete provider’s consent, or in a way that is inconsistent with the gamete provider’s consent. Maximum penalty: 200 penalty units. (2) Subsection (1) does not apply if the ART provider uses the gamete in accordance with a court order under section 37 (Authorisation of posthumous use). Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58).

Section 34 extends to prohibit use of the embryo by virtue of the definition of gamete in the Dictionary to the Act. Gamete is defined where it is used in the provision of assisted reproductive technology treatment, to include an embryo created from a gamete.

Section 37 of the ART Act empowers the Court to authorise the use of the embryo in an ART treatment. The section includes mandatory considerations: … (2) In deciding whether to authorise the use or storage of a deceased gamete provider’s gametes, the court must consider the following: (a) whether the domestic partner has capacity to consent to the provision of the treatment; (b) whether the domestic partner has undergone appropriate counselling; (c) the best interests of any children to be born as a result of the treatment, including— (i) whether the domestic partner has capacity to provide for the child’s emotional, intellectual and other needs; and (ii) whether the child is likely to have safe and stable living arrangements; (d) whether the gamete provider expressly objected to posthumous use of their gametes; (e) whether the gamete provider is likely to have supported posthumous use of their gametes in the provision of ART treatment to their domestic partner; (f) any other matter the court considers appropriate. …

In support of her application, KD reads her affidavit affirmed on 5 May 2026 and that of CT’s stepfather affirmed on 4 May 2026.

Relevantly for the purposes of the mandatory considerations: (a) KD does not believe the couple underwent any counselling in the course of the IVF process, but she has recently undergone a course of counselling with a clinical psychologist whose report is in evidence before me. It demonstrates a comprehensive exploration of relevant issues including KD’s background, family situation and mental health history together with more sensitive issues around coping with grief and loss and the prospective mental health impacts for KD and any child resulting from a successful ART treatment. The psychologist concludes “it is my impression that she is capable of making informed decisions and there are no psychological factors identified that are affecting her decision to conceive posthumously. Furthermore, she reports being supported by a large group of family and friends, and in particular reported that [CT]’s family are supportive of her decision, which are protective factors”. (b) KD is a practising accountant. She is yet to return to work following CT’s death, but she is in a stable financial situation, living in her own home and with a good earning capacity. She is therefore not only emotionally equipped to provide a supportive environment for any child, but she has the financial capacity to do so. (c) KD also attests to her belief that CT would likely have supported her proposed further attempt at a successful pregnancy in the circumstances. In that regard, her expression of opinion is strongly supported by CT’s stepfather who shared a close and loving relationship with CT up until the time of his death. (d) The critical issue in this case, in terms of the mandatory considerations, is s 37 (2)(d) of the ART Act which provides “whether the gamete provider expressly objected to posthumous use of their gametes.” The evidence before me demonstrates both CT and KD provided an express objection to posthumous use in the context of the provision of consents for IVF treatment. KD says in her case, she did so in the belief the question was directed to a point much later in life where the couple’s own use of their reproductive products was no longer an option for them. It was in that context she provided her objection to posthumous use. She is confident the position was the same for CT. She recalls no explanation of the question at the time the consent was completed. (e) It strikes me as incongruous that CT, having gone to such demonstrated lengths in pursuit of the dream of producing a child with his partner would, armed with the prospect of her having an opportunity to carry his child after his death, intend to frustrate that course by completing the consent form in the way he did. At the time he completed the form, it is most unlikely to have been in his contemplation he may pass away at a time when his partner remained physically capable of carrying his child. The relevant window could only have been a few years given their respective ages. CT’s stated objection is a matter to which I must have regard in determining whether this is an appropriate matter in which to give authorisation pursuant to s 37 of the ART Act. However, it is only one of a number of mandatory considerations and the list is not intended to be exhaustive. I do not believe his objection was intended to prevent posthumous use of the kind now proposed by KD. I accept her opinion that CT was likely to have made his objection in contemplation of the prospective use of gametes by others at a time well beyond the couple’s own reproductive window.

In all of the circumstances, I am satisfied KD is mentally and financially equipped to carry the child of her deceased partner should an ART treatment result in a successful pregnancy. Most importantly, I am satisfied if CT had been afforded an opportunity to reconsider his position, armed with the knowledge of his impending death, he would have provided the necessary consent. I therefore consider it appropriate to make the orders sought.