In a recent judgement delivered this week, Justice Watts of the Family Court of Australia says he had no choice but to refuse a woman’s application seeking access to the frozen sperm of her deceased partner.
Ms Vallance and Mr J were in a relationship for a period of less than two months and did not live together. Shortly before the pair met, the deceased (“Mr J”) was diagnosed with non-hodgkin lymphoma. Prior to the commencement of his treatment and before he met Ms Vallance, Mr J deposited and stored his semen for use in the future.
The couple formed a relationship during Mr J’s successful chemotherapy, however, the cancer treatment took a toll on the man’s health and he later committed suicide.
Subsequently, Ms Vallance, with the support of Mr J’s sister, Ms Marco, (the executor of his estate) asked the clinic to release his sperm. The clinic said that as no partner was listed on Mr J’s signed consent to have his semen frozen; a court order would be required before they could release the sperm.
Justice Watts said that notwithstanding the evidence that in the period before his death, Mr J and Ms Vallance discussed between themselves and family members the intention to marry and start a family; he had no alternative but to dismiss the application as the Family Court did not jurisdiction.
Justice Watts says that the court is limited to considering only matrimonial, de-facto, property and children’s matters.
“It may be that the frozen sperm specimen can be treated as property… the difficulties in this case are that firstly…the parties at no time lived in a de facto relationship… Secondly, the relationship between Ms Vallance and Mr J did not break down…thirdly Mr J was not alive at the date Ms Vallance filed her application.”
Further, the legislation relating to children is only enlivened once a child is born.
“If there is any power to entertain Ms Vallance’s request for the orders sought, it must lie in State law. It might for example, be that Ms Marco is entitled to Mr J’s frozen semen specimen as the executor and trustee of his estate…accordingly I have no alternative but to dismiss the application”.
The lawyer for Ms Vallance made reference to another case where an urgent application was brought in the Supreme Court of Queensland by the wife of a man who was killed in a car accident earlier that day. The wife sought an Order from the Court allowing the removal of sperm from the deceased husband. The Court authorised the removal of any testes and spermatozoa from the deceased and authorised the storage of the sperm obtained pending a future application to the Court for the use of that sperm.
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 Vallance & Marco  FamCA 653 – August 2012.
 Re Floyd  QSC 218