Sperm taken from brain-dead husband

DEIDRE MUSSEN
Last updated 05:00 08/06/2014

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A court order has allowed sperm to be collected from a brain-dead Auckland man before his life support was switched off, so his partner could have a child by him.

The rare case was raised recently by the Ethics Committee on Assisted Reproductive Technology (Ecart), which sought advice from the Ministry of Health about collecting and using sperm from someone who couldn't consent.

Under law, his consent was required before death to collect his sperm and freeze it. A court order was needed to overrule that.

It is understood the man's sperm was collected earlier this year by Fertility Plus, Auckland District Health Board's fertility clinic, before life support was withdrawn and he died. The procedure involved a biopsy from his testicles, a technique commonly used by fertility specialists for men with sperm problems.

An application by his partner to use his sperm and create his offspring posthumously was yet to be lodged.

Fertility Plus scientific director Margaret Merrilees declined to comment on the specific case. However, she said a family needed a court order to allow the clinic to collect sperm from a man on life support if they had not previously signed a consent form for its collection and storage.

"In the court order, when they are requesting it, they have to show that they were either trying to get pregnant or have some evidence that he wanted to have a child with that person."

Once the sperm was frozen and stored, it could not be used without the donor's prior consent unless approval was granted by Ecart.

"Even if someone banks sperm, we've got no idea whether the woman will apply to Ecart to use it."

Fertility Plus had a one-year "stand-down period" after a man's death until his frozen sperm could be used to create a baby, even if he had previously consented to its use.

"It's just because they're grieving," Merrilees said. "Most don't go ahead with it."

There have been cases in New Zealand of men dying after consenting to have their sperm frozen, and a handful of babies have resulted.

Only one application to use sperm from a dead man who had not given consent has been lodged with Ecart since it began in 2005.

It was declined in November 2006 "due to the intending mother not residing in New Zealand and consent not having been obtained from the deceased man", according to its 2006-07 annual report.

Ecart chairwoman Kate Davenport said it would be inappropriate for privacy reasons for the committee or the ministry to comment on, or provide details about, an individual case.

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"Ecart often receives requests for clarification on whether ethical approval is required in certain circumstances. It is not always the case that these inquiries later result in applications to Ecart for ethical approval."

She said no application relating to the collection and use of sperm from a comatose man had been received by Ecart.

Guidelines were first established in 2000 about collecting sperm from a comatose or recently dead man without his prior consent, which noted it was "ethically unacceptable".

Mary Birdsall, of Fertility Associates, said its clinics had seen a number of cases in which frozen sperm or embryos had been used after death, but consent had always been gained before they died.

"I'm just worried [this case] will open the door, that for ventilated and brain-dead people, then it's justified."

- Sunday Star Times

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