NSW Supreme Court Grants Sydney Widow Permission to Use Husband’s Sperm

A Sydney woman has been granted permission to use her late husband’s sperm by the NSW Supreme Court.

Joel and Yoshiko Chapman were married in 2017 and “expressed a desire to have children”, however, earlier this year Mr Chapman suffered a stroke caused by complications of a neurosurgical procedure and never regained consciousness.

Upon being advised that her husband was unlikely to survive, Mrs Chapman applied for the removal and storage of a sperm sample. The judge ruled for the extraction procedure to take place following Mr Chapman’s death and directed that the sperm sample should be stored in anticipation of a further order of the court.

The Supreme Court considered the following issues:

• Whether the plaintiff was entitled to possession of the sperm removed; and,
• Whether granting the plaintiff’s possession was an infringement of the Assisted Reproductive Technology Act 2007, as the deceased had not given his permission for the sperm to be removed.

The Court ruled that Mrs Chapman was entitled to the sperm sample on the basis that it was a release of property to which she was already allowed.

This decision follows precedence set by a Queensland Supreme Court ruling, in which a woman was granted possession of a sperm sample extracted from her recently deceased partner following his suicide.

Both rulings have been considered problematic by Australian-based family law firms. Practitioners indicated that there is no legal basis in which “an individual’s reproductive tissue — in this instance, sperm — could be considered as property.”

The NSW Supreme Court has also responded to this gap in legislation, calling for

parliament to provide clearer guidance on this issue of consent.

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