Posthumous Sperm Retrieval and the Law in Australia
Laws provide the framework in which society functions so individuals can live in harmony and co-operation. This is known as social cohesions. Without laws there would be no guidelines of what is acceptable behaviour. (Green, 2012). The law on post-mortem sperm retrieval is minimal. In fact, there is no specific law on post-mortem retrieval. In the Human Tissues Act 1982 does not include a sufficient distinctive definition of what a human tissue is and if it includes bodily fluids such as semen. If the law does consider semen to be a human tissue in Part IV of the Human Tissues Act 1982, then the law is that the deceased male has to have given consent at one point in his life whether it be in writing, or if he has expressed during his time of illness that he wishes to have his human tissues removed for future uses, or when the senior next of kin makes it know to the designated officer that the deceased person consents to the removal of human tissues. The amendment of the Human Tissues Act in 2006 did not clear up the laws on post-mortem sperm retrieval nor did it have the definition of a human tissue whether it refers to bodily fluids or not. In the article A Matter of Life Death by Kate Legge, it states that:
“There is no precedent in that state for approving posthumous use. NSW and Victoria require written consent from the deceased. Western Australian has a blanket prohibition on the use of sperm after death.” (case in appendix three, case one)
If NSW and Victoria require written consent from the deceased and Western Australia has a blanket prohibition on the use of sperm after death, and Queensland has no law to base an outcome on how will the law settle any future cases? The law needs to amend the Human Tissues Act 1982 further, and laws need to be made in each state or territory not just NSW, Victoria, Western Australia and South Australia.