Who Can Consent to Use of Dead Teenager’s Frozen Sperm?

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I have so many basic factual questions about this story concerning the frozen sperm of an Auckland, New Zealand teenager:

Promising young film-maker Cameron Duncan banked sperm at age 15 before starting chemotherapy in 2002 for bone cancer in his left femur. Knowing the chemotherapy might destroy his fertility, he wanted to preserve the chance of having children in the future. * * *

Tragically, Cameron was only 17 when he died in November 2003 – but in his will, he preserved his sperm, and it has remained frozen ever since.

The Human Assisted Reproductive Technology Act, passed shortly after, imposed a 10-year limit on storage of frozen sperm, embryos and eggs plus testicular and ovarian tissue.

There is an additional one-year window, though, to argue the case that sperm could be used to create a baby, rather than be destroyed.

Under the act, nobody had the right to use sperm stored by a minor aged under 16 years, except the person himself. An applicant would have to show that Cameron did grant his consent for the use of the sperm, before he died.

The Advisory Committee on Assisted Reproductive Technology said it would be necessary to prove how the law could allow using a minor’s sperm without his consent.

Read the full story here.

Is there someone who is seeking to use the decedent’s sperm?  What evidence is there that the decedent consented to posthumous reproduction?  What is the legal significance of the fact that the decedent was a minor at the time the sperm was frozen and at the time of his death? Does New Zealand’s Human Assisted Reproductive Technology Act apply retroactively?  If any children were born of this decedent’s sperm, would the offspring be entitled to state support or other survivor’s benefits, as was sought in the Massachusetts case of Woodward v. Commissioner of Social Security, 70 N.E.2d 257 (Mass. 2002)? Any thoughts or recommendations for further study from New Zealand readers would be much appreciated.

-Bridget Crawford

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