A Dead Man’s Sperm can Now be Used to Father Children Post-death. But What does this Mean for Wills, Estates and Family Law?

Unless you have been avoiding the internet, television, radio and social media for the past 24 hours, you have no doubt heard the news that in a landmark Supreme Court Decision, a local Woman has won the right to use her deceased spouse’s sperm to have children.

But what does this decision mean for Wills and Family Law purposes?

The Minor Issues:

As part of the Estate Planning process, this is a further issue that couples may wish to discuss when preparing their Wills and Enduring Powers of Attorney. If they both agree that they would want a man’s sperm to be made available if he unexpectedly passed away, steps should be taken to record this wish in the Will (and possibly his Enduring Power of Attorney as well).

As part of the Estate Administration process (once the man has died), if a surviving spouse wishes to use his sperm at a future date then steps need to be taken quickly after death to apply for the deceased’s reproductive tissue and sperm to be extracted. The issue then becomes whether the sperm could/should be used in an IVF procedure (keeping in mind that the case at hand showed very strong factors in favour of allowing the use of the deceased’s sperm).

The Major Issues:

If a child is then conceived from a deceased’s man’s sperm, are they legally considered to be a child of the deceased?

Or, more to the point:

1. If the deceased’s superannuation fund did not have a binding nomination on record, should they distribute any of the deceased’s superannuation to the child?
2. What happens when the deceased has made a general gift to ‘children’ in their Will?
3. If there is an intestacy situation (the deceased died without a Will), is this child to be classed as ‘issue’ and accordingly receive a distribution?
4. Can the child (or their legal guardian) contest the deceased’s estate for further provision?
5. From a Family Law point of view, further to the issue of whether or not the deceased is the father of the child, how will any future applications made by members of the paternal family, in the event there was a breakdown in the relationship between the Mother of the child and the paternal family, be dealt with in the event that the child’s time with the paternal family was limited or ceased?

Arguably, all of the above issues/questions also apply to the use of a deceased’s woman’s embryo’s to have a child post-death (however by the very nature this would also be mixed with surrogacy law issues).

At this stage, it is too early to provide a definitive legal answer to any of the above questions, however it would not surprise us if legislative reform is underway very shortly.

Watch this space.