Posthumous Conception
Posthumous conception is the use of a person’s eggs or sperm after they have died or become permanently unable to consent, usually so that a surviving spouse can try to have a child. It is one of the most emotionally and legally difficult areas in assisted reproduction, and it is governed by strict rules that differ between states.
If you are facing this situation, you are likely dealing with grief and time pressure at once. This page explains the legal framework, with a focus on Queensland, so you understand what is involved and where to get advice quickly.
Is posthumous conception legal in Australia?
Posthumous conception can be legal, but only within a strict framework, and the rules vary by state. In Queensland, the position changed significantly with the Assisted Reproductive Technology Act 2024 (Qld). Before that Act, cases such as Re Cresswell [2018] QSC 142 dealt with the retrieval of reproductive material from a deceased person under general tissue legislation. The ART Act now sets out specific procedures for when and how gametes may be collected and used after death or incapacity.
Under the ART Act, retrieval of gametes from a deceased or unresponsive person is governed by the Act rather than the earlier tissue legislation, and it must follow the procedures the Act lays down. Because this is state-specific and detailed, advice on the framework that applies to you is essential.
What does the law in Queensland require?
Queensland’s framework sets out who may retrieve gametes, on what basis, and with what approval. Drawing on the Assisted Reproductive Technology Act 2024 (Qld), the key points are:
- Gametes may generally only be collected by a medical practitioner, or under their supervision, and for the purpose of ART for the benefit of the deceased or unresponsive person’s spouse
- Written consent is not required in every case. Retrieval may be authorised where there is evidence the person consented during life to their gametes being used for their spouse, or where they did not object and it can reasonably be shown they would have supported it
- A request may usually be made by the person’s spouse, or in limited exceptional situations by a family member
- Before the retrieved material can be used in ART, an independent review body must approve it, weighing matters such as the spouse’s capacity to consent, whether they have had counselling, and the wellbeing of any child who may be born
The position outside Queensland differs, and in some states the framework is less developed. If you are dealing with this in another state, we can advise on what applies there.
How we help
We provide careful, practical advice on:
- Whether retrieval and use of gametes is legally possible in your circumstances and state
- The consent and evidence the law looks for
- The independent review and approval process
- Coordinating with fertility providers, who make the clinical decisions within the legal framework
We understand this advice is often needed urgently and at a painful time, and we approach it with that in mind. Consultations run by Zoom, phone or in person. Book a time or use the contact page.
About Katie
Katie founded The Family Village after years of IVF and a five-year journey to find a surrogate for her own family. Her son Vinnie was born via surrogacy in 2022. She has 19 years of legal experience and is a member of the Queensland Law Society.
Katie’s own surrogate, Sally, now works alongside her at The Family Village, supporting other intended parents and surrogates through the same process they have both been through themselves.
Contact UsQuestions we get asked
Only within the legal framework that applies in your state. In Queensland the Assisted Reproductive Technology Act 2024 sets out specific requirements, including who may make the request and the need for independent approval. Because retrieval is time-critical, get advice as soon as possible.
Not necessarily in Queensland. The Act provides pathways where retrieval may be authorised based on evidence of consent during life, or an absence of objection combined with a reasonable likelihood they would have supported it
Retrieval and use are subject to the legal framework and, for use in ART, approval by an independent review body. Fertility providers make the clinical decisions within that framework.
No. Queensland now has a detailed framework under the ART Act 2024. Other states differ, and some are less clear. Advice specific to your state is important.
Get in touch
If you are facing a decision about posthumous conception, please reach out as soon as you can. Timing matters, and we can help you understand your options quickly and with care.
Book an appointmentOr visit our contact page
