Re an application under the Assisted Reproductive Technology Act 2024 [2025] ACTSC 549 (16 December 2025)

1. [Redacted]. The partner of [redacted] has applied to this Court for authority to store his sperm (extracted posthumously) to keep it available for use by her in the event that she decides at a later time to attempt to have his biological child.

2. The storage of gametes is regulated by the Assisted Reproductive Technology Act 2024 (ACT). The present application invokes s 37 of the Act, which confers power on the Court to grant authority to the domestic partner of a “deceased gamete provider” for the use and storage of gametes taken from the deceased person. The proceedings have been brought in the ACT Supreme Court because, although New South Wales has similar legislation, the New South Wales statute does not include provision for the posthumous use and storage of gametes in the terms of s 37.

3. Before making the present application, the applicant was advised that, in order for the gametes to be viable, they needed to be extracted within 72 hours of the death of the deceased and that the closer in time to his death the gametes were removed, the more likely it would be that the sample would be viable. In her capacity as the de facto partner of the deceased, being the relevant senior next of kin, the applicant gave consent in writing for the removal of a posthumous sperm sample from the deceased, as contemplated under s 23 of the Human Tissue Act 1983 (NSW): cf Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 at [58] (Fagan J). At the hearing of the present application, I was informed that a posthumous sperm sample had already been extracted from the deceased.

4. The applicant has authorised Genea, a registered assisted reproductive technology provider, to collect the posthumous sperm sample for storage by Genea. However, she has been advised that, under the New South Wales legislation, she cannot store the gametes in New South Wales because the deceased did not consent in writing to the removal of the gametes. The application was accordingly urgent because the sperm has been collected in New South Wales but cannot lawfully be stored in that jurisdiction.

5. The Chief Operations Officer of Genea has confirmed that Genea is willing and able to provide storage and treatment services to the applicant. He indicates that, having regard to the sudden and unexpected circumstances of the death of the applicant’s partner, the formal intake process with the applicant has not yet been undertaken but will be undertaken as soon as possible.

6. The application of the Assisted Reproductive Technology Act is guided by the principles stated in s 7 of the Act, which include the protection of the health and wellbeing of people undergoing assisted reproductive technology treatment. Section 37 supports that principle by enabling the domestic partner of a deceased person to preserve the possibility of seeking assisted reproductive technology in the future by preserving the gametes.

7. Section 37 provides: (1) The domestic partner of a deceased gamete provider may apply to the Supreme Court for an order to authorise the following in relation to the gamete provider’s gametes: (a) use of the gametes in the provision of ART treatment to the partner; (b) storage of the gametes for the authorised use. (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.

8. It may be noted that the section addresses both the use and storage of the gametes. In the case of a deceased gamete provider, the occasion for storage of gametes collected posthumously will ordinarily arise before the occasion for their use. That is certainly the case here. The applicant states in her affidavit sworn in support of the application that she is “devastated and heartbroken beyond words” by the death of her partner, [redacted]. At the time of my hearing this application, that was just over 36 hours ago. [redacted].

9. One question of statutory construction that arises in respect of s 37 is that the power to authorise storage under s 37(1)(b) is confined to storage for a particular use. The section refers to the “storage of the gametes for the authorised use” (emphasis added). The reference to “authorised use” is plainly a reference to the use of the gametes specified in s 37(1)(a), namely, in the provision of assisted reproductive technology treatment to the applicant. The applicant is not currently in a position to decide whether she will apply for authority to use the gametes. In her affidavit, she states: At this time, I do not know what my plans or hopes to use [the deceased’s] gametes in the future are. I have not had the head space or time to consider it properly. I do know I would like to preserve the option of having [the deceased’s] child or children posthumously in the future.

10. It could be argued that the power to authorise storage of gametes is predicated upon there being existing or simultaneous authority to use the gametes. However, in my view, that is not the proper construction of the section. I am satisfied that s 37(1) confers power on the Court to authorise the storage of the gametes of a deceased gamete provider for the purpose of preserving the gametes for the possibility of future authorised use, even where the applicant has not yet decided whether to make any such application. Any different construction would produce an absurd and unworkable result. It would require a person in the position of the applicant, whose life has just been torn apart [redacted], to make a decision she is clearly not in any position to make on a considered basis at the present time.

11. Counsel for the applicant submitted that support for my construction may be found in the language of s 37(2) of the Act, which specifies a list of mandatory considerations in deciding “whether to authorise the use or storage of a deceased gamete provider’s gametes”. The submission was that, in referring to each form of authority in the alternative (“use or storage”), the legislature must be taken to have contemplated that an application for storage may be made separately and apart from any application for use.

12. A countervailing consideration is that some of the mandatory considerations in s 37(2) are apparently directed only to the question of use, such as the consideration specified in s 37(2)(c), “the best interests of any children to be born as a result of the treatment”. I am nonetheless satisfied, for the reasons I have stated, that s 37(1) was intended to allow the domestic partner of a deceased gamete provider to apply for authority to store posthumously collected gametes even where that person has not yet decided whether they will make an application to use the gametes. It does no injury to the language of s 37(2) to construe that provision so as to require the Court to have regard to the mandatory considerations only to the extent that they are relevant to the application at hand.

13. Turning to the mandatory considerations specified in s 37(2), the applicant’s affidavit establishes that she has capacity to consent to the provision of assisted reproductive technology treatment, even though she has not yet made the decision whether to seek that treatment. She has not yet undergone appropriate counselling but that should not foreclose an order authorising the storage of the gametes in the meantime. It is not yet necessary to consider the best interests of any child to be born as a result of the treatment.

14. The principal considerations in the case of an application only for storage are those specified in (d) and (e). The applicant has stated in her affidavit that the deceased did not at any stage expressly object to posthumous use of his gametes. She further states that he is likely to have supported posthumous use of his gametes in the provision of assisted reproductive technology treatment to the applicant. On that topic, the applicant states: “[the deceased] and I discussed the desire to have children together from the very start of our relationship” and that “it was never a question or grey area”. She states that, although they never directly discussed IVF treatment, she believes he would have supported such treatment had they required it.

15. I have no hesitation in accepting the applicant’s evidence on that issue. She is the person who, based on communications during her relationship with the deceased, is best placed to make that assessment

16. Finally, s 37(2)(f) requires me to have regard to “any other matter the court considers appropriate”. In the circumstances of the present case, I consider it appropriate to have regard to the circumstances in which the applicant’s partner died and her desire to preserve his sperm. To the extent that the granting of the application may bring some peace of mind to the applicant in knowing that the option of having a biological child of the deceased is preserved, so that her grief is not intensified by anxiety about that issue, I am satisfied that it is appropriate to take that consideration into account.

Orders

17. The orders of the Court are: (1) Grant to the applicant authority for Genea, a registered Assisted Reproductive Technology provider, to store the gametes of her deceased partner, [redacted] for the authorised use of the gametes in accordance with s 37(1)(b) of the Assisted Reproductive Technology Act 2024 (ACT). (2) Grant liberty to the applicant to have the proceedings relisted before a judge of the Court on short notice. (3) Stand the proceedings over to 9:45am 22 May 2025 before the Registrar. I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate: C Pilcher Date: 17 December 2025