What's it about? There's law and there's morality, but don't assume they'll find a happy meeting ground. This is exemplified in the recent experience of a Canberra woman, known only as "AB", who applied to the Supreme Court of Victoria to be allowed to remove sperm from her husband's body. Nothing strange about that – surely artificial insemination by IVF is an everyday event in this technologically advanced era. But what if the husband is dead, and this is the first time anyone has made a request like this? Does that change the equation?Supreme Court Justice Gillard allowed the sperm to be removed from the corpse, but ordered that it must be stored until the Court has a chance to consider the next move. The judge said he was prepared to make the order because the procedure had to take place promptly, before the sperm died, but he would consider the wider issues at a later date. The case has caused a furore, with everyone from bioethicists to lawyers ready to voice an opinion. Is it fair to take this action on behalf of a dead man who cannot give his consent (though who's to say he would not have done so)? Is it any business of the law what decision a woman makes about the use of her husband's sperm? Can the law possibly keep pace with the rapid changes in medical technology? Why should we discriminate against a woman who creates a fatherless child any more than a single mother who chooses to raise a child alone? If you can leave your assets in a will, why can't you leave behind a child, if that would have been your wish? And just because we can perform a medical miracle, does that mean it should likewise be legal? As you can see, this is one of those debates that attracts diametrically opposed opinions. No matter which side you choose, there will be legitimate arguments to support that view. The bottom line is that Victorian law does not allow the woman AB to use her deceased husband's sperm. The Infertility Treatment Act prohibits the use of the sperm from a dead man, even though there does not appear to be a reason why the sperm should not be extracted (you have to ask, though, what sperm is otherwise good for!). Before the sperm can be used for assisted reproduction, a written consent must be obtained from the donor – how can this be done if the donor has died?Also, the law requires that the woman be married or in a stable and ongoing defacto relationship; that there is a diagnosis of infertility; and that the couple undertake counselling. By the way, this also means that the couple must be heterosexual. Put it all together and AB faces insurmountable problems in her quest to use the sperm in Victoria. But clearly the problems are more acute than merely transgressing the law, because the whole issue is bound up with moral questions. So the law won't let AB use the sperm in Victoria. Is that the end of it? The Infertility Treatment Act set up a body called the Infertility Treatment Authority. They have the power to approve an application to "export" the sperm. If she's allowed to take the sperm out of Victoria, she can go to another State (like South Australia) where there is no prohibition against using sperm from a dead man. But, South Australia restricts IVF to married or defacto couples. NSW, on the other hand, does not have specific laws that prohibit access to IVF, but she may still face hurdles under generally accepted ethical rules that guide the operation of medical institutions. What about overseas? Again, she would still have to get the permission of the Infertility Treatment Authority to remove the sperm from Victoria. This is unknown territory, although the Authority certainly has that power, can we assume the Parliament contemplated this possibility of "export"? The law and society's values are often at loggerheads. It's easy to reproach the legal system as the villain, but what's the alternative? Most of us expect the law to reflect the values of our society, and to enforce generally accepted forms of civilised behaviour. And we might as well bite the bullet now, because the dilemmas will just keep on coming, particularly when you consider that the Human Genome Project will soon present us with a genetic map of the human species – and of course, once you have a map, you also have the means to take a genetic detour.As things stand, this really leaves the law floundering. Thus far the law has chosen the more conservative stance in these ethical issues – we look to bring a child into a stable relationship, where the sperm donor consents to the process and IVF is the last resort. But to be fair, we should remember that every new social law creates it's own moral dilemmas, and for every ethical rule there will be worthy exceptions. It is the sign of a mature society that we openly debate these issues as they arise, and settle them with as much compassion and intelligence as we can muster.
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