Woman loses fight to have dead husband's baby

May 27, 2005 - 2:59PM

In the first ruling of its kind in Australia, a Victorian woman has lost the fight to have her dead husband's baby.

Supreme Court Justice Kim Hargrave ruled today that a 36-year-old woman, whose husband died in a car accident in 1998, cannot be impregnated with her dead husband's sperm using artificial reproductive technology.

It was the first time an Australian judge ruled on the issue of whether a widow can use her dead husband's sperm to have his child.

The woman in this case, who cannot be named, was married to her husband for more than eight years when he died.

A Supreme Court ruling in 1998 allowed her to have his sperm taken and stored at the Royal Women's Hospital.

But today, Justice Hargrave ruled the Infertility Treatment Act banned the proposed procedure unless written consent was given by her late husband before his death.

"It is one thing for a married man to wish to have a family," Justice Hargrave said in his judgment," Justice Hargrave said.

"It is altogether another thing for a married man to consent to his sperm being used in a treatment procedure as defined by the Act.

"It should not be assumed that such consent would necessarily have been forthcoming if the matter had been considered by the (woman's) late husband."

Justice Hargrave also found that under the Human Tissue Act, the dead man's sperm should not have been removed in the first place.

He said the law does allow the removal of sperm from a dead man in some circumstances, but the relevant circumstances were not established when the removal order was made.