IVF treatment raises estate planning issues

In a landmark case earlier this year, the Supreme Court of NSW allowed a woman access to her deceased husband’s sperm with the intention to conceive a child via in-vitro fertilisation (IVF).[1]

The applicant in the proceedings, Jocelyn Edwards and her husband Mark Edwards had been attending appointments at their local IVF clinic in the days immediately preceding Mark’s sudden death resulting from a workplace accident.

Under NSW law, IVF treatment is only permitted with the consent of the donor.

In this case, while Mr & Mrs Edwards had discussed and planned to sign IVF consent forms, this did not happen prior to Mr Edwards’ passing.

Mr Edwards’ sperm was extracted from his body after his death pursuant to interim court orders made immediately after Mr Edwards’ death.

Mrs Edwards was forced to apply to the Supreme Court to obtain a declaration that she, in her capacity as the administrator of the estate of her late husband, was entitled to possession of her late husband’s sperm.

After considering the existing case law and facts before him, Justice Hulme ruled that Mrs Edwards was entitled to property rights in the sperm as the administrator of her late husband's estate. His Honour further ruled that Mrs Edwards was entitled to have this sperm “released” to her and that this would not breach legislation requiring the donor’s consent.

Recent statistics show that the use of assisted reproductive technologies (ART) has increased by close to 50% over the past 5 years. This rise in ART including IVF raises a number of estate planning issues.

At Kells, we have experience in drafting special Wills for couples utilising ART.  These Wills consider issues of consent to IVF treatment after death, gifts to children who are born after the willmaker’s death via IVF and the guardianship of any such children.

[1] Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478