From the grave to the cradle: Is it time to legislate posthumous parenthood?

Janine McIlwraith1

1 Slater & Gordon Lawyers, 485 La Trobe Street, Melbourne, VIC, 3000,

Edgar Allen Poe wrote “The boundaries which divide Life and Death are at best shadowy and vague. Who shall say where the one ends, and where the other begins.”  More than 170 years on, the boundaries of life and death continue to be a fertile ground of bioethical debate and perhaps none more so than in the area of posthumous reproduction. The recent case of Re Leith Dorene Patteson [2016] QSC 104 highlights the continuing uncertainty and, some would say, inconsistency, of the legal approach to posthumous sperm retrieval in Australia. This presentation aims to critically examine the approach of the courts to applications for the retrieval and use of sperm from the brain dead or deceased man. In doing so, the broader issue of whether regulation is warranted in this arena is also considered. Perhaps unavoidably, the legal framework is critically evaluated in light of the ethical issues underpinning the emotionally charged discussion and the appropriate conceptualisation of the issue is explored.


Janine is a health lawyer who works in private practice as a Principal Lawyer with Slater & Gordon, Melbourne in their Medical Law Department. She has co-authored two prominent medical law texts, Health Care and the Law (4th, 5th & 6th editions) and Australian Medical Liability (1st & 2nd editions). Janine also co-authored the National Disability Insurance Scheme Handbook and has written and edited a number of chapters for Halsbury’s Laws of Australia including the chapter on surrogacy. Janine is also a Senior Fellow at Monash University.

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