Simone Baker and Andrew Clough met six years ago. They were getting married in April 2003 and they both wanted to have children. They had already picked out names, had decorated a room in their home as a nursery and changed their health insurance cover to “family”.^1–3

On New Year’s Eve Ms Baker saw her fiancé slip and fall to his death at the Roaring Meg Falls in an isolated part of far North Queensland. In the days that followed, Ms Baker made an emergency application to the Queensland Supreme Court to harvest and freeze her fiancé’s sperm so she could carry out their wish to have their child. Both families were supportive of Ms Baker in her desire to have her dead fiancé’s child.⁴

The court denied Ms Baker’s request and the judgment came seven days after the man’s death—the last day that pathologists could have removed the sperm. Mr Clough had not given specific written consent for his sperm to be harvested in the event of his death although he had consented to organ donation.^2–4 The judge said there was no precedent for ruling in Ms Baker’s favour.^3–5 In Queensland, it is a criminal offence to “interfere with the body of a dead person without lawful justification” and “lawful justification” requires consent prior to death for “specific use of body tissue”.⁴

In some instances, however, the use of human tissue and organs after death without specific consent is allowed. Tissue can be removed for transplantation and “other therapeutic” or “medical and scientific purposes”. And, the next of kin can refuse consent even if the dead person consented prior to death. In these situations the family are the “actual donors”.*⁶

Nevertheless, it is reasonable to ask whether genetic tissue is in some way special and different from organs.

If we are thinking in terms of the dead person’s interests it is not clear why genetic tissue should be treated differently. John Harris describes concern for the destiny of male gametes as an “overly precious attitude” not “reflected in custom or practice” given that “men are notorious for leaving their gametes behind in all sorts of places, some of which may well result in the creation of life”. And, they “almost always” do this without “counselling, formal consent, and time for reflection, and usually without missing them…”.⁷

After the court’s decision, Ms Baker learnt that her fiancé might have donated sperm when he was a university student. The university he attended had a campaign “where you could donate sperm and get money for it”. A university spokesperson said they were trying to clarify whether the dead man had donated sperm for research purposes or for a fertility programme. It was “extremely unlikely” the spokesperson added, for a donation made 10 years ago for research or for fertility purposes to be available still. Such donations “would most likely be used at the time of donation” and “the hospital or university would have then owned [the sperm]” if the donor was paid for it.^8,9

In terms of consent, if Mr Clough had donated his sperm for fertility purposes, given what we know, there seems to be no good ethical arguments for denying Ms Baker access to her dead fiancé’s sperm.

If the sperm is still available Ms Baker could access her dead fiancé’s sperm. If she is eligible to receive donor sperm, she could possibly identify Mr Clough’s sperm from the donor’s characteristics. There is no good reason why she should be denied access to Mr Clough’s donated sperm if it is still available and available to others.

In relation to sperm retrieval after death, we know Mr Clough wanted children and that he wanted to have children with Ms Baker. We don’t know if he wanted her to have his child after his death but that is something we will never know. It seems to be something he did not discuss with anyone. Nevertheless, it can be argued that his consent to organ donation together with his past sperm donation and his wish to have a child with Ms Baker add up to consent for his sperm to be harvested and used by Ms Baker after his death. When Mr Clough donated sperm, we can assume that his permission included giving up any interest in or control over its future use. In other words, he was open to the idea of fathering children in whose lives he had no part. From this and the other things we know, consistency suggests that as well as ticking the organ “donor box”⁴ in his will, if there had been a box specifically requesting permission for his sperm to be harvested after death he would have ticked that too. One of the interesting things about this case is that we seem to be able to work out from Mr Clough’s former autonomous decisions what he would want in a situation he did not talk about and might not have contemplated. The evidence we have is a good example of the kind of evidence sought when decisions have to be made for a previously autonomous person who becomes incompetent or debilitated—when we want to act in accordance with how that person would choose for him or herself. The surrogate decision makers in this case, Ms Baker and Mr Clough’s family and friends, were sufficiently acquainted with the dead man to make a decision reflecting his values—and there was no disagreement amongst them on this. They were able to show a “demonstrable basis in former autonomous decisions”¹⁰ that Mr Clough would have given his permission for Ms Baker’s request for his sperm to be harvested after death.

A further interesting thing about this case is that it illustrates the way in which ethics, law, and personal opinion can differ. My intuitive response to this case was that Ms Baker should not try to have her dead fiancé’s baby. Nevertheless, on critical reflection I find there are good reasons in support of her request to retrieve and harvest her fiancé’s sperm and no good argument to support my initial response. Ethical reasoning involves critical analysis and (depending on choice of ethical theory), seeking to determine the best outcome from all possible alternatives or looking to see if there are any ethical principles being violated. Legal reasoning is different. In denying Ms Baker’s request, the judge relied on precedent as a guide. Legal decisions based on precedent are standardised, consistent, predictable and impersonal, and rooted in the values and ethical standards of the past.