New Zealand women could become mothers from beyond the grave under potential changes to our clinically assisted reproductive laws.

Health officials will early next year release proposed changes to guidelines around posthumous reproduction laws, as current regulations have been labelled by experts as "out of date".

The Advisory Committee on Assisted Reproductive Technology (Acart) – a ministerially appointed body – is preparing new guidelines which could enable embryos to be developed from eggs harvested from women who have subsequently died.

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Other changes could potentially allow for the consented posthumous retrieval of sperm from dead men and eggs from dead women.

Under current laws, the consented posthumous use of sperm donated before a man's dead can be approved. Post-death egg use is not covered.

Those regulations were created in 2000, four years before Acart's creation and before technological advancements allowing for the safe storing of eggs.

Proposed changes will be released for public debate after an earlier consultation period which started in July 2018.

Current regulations do not allow for eggs to be used posthumously in New ZealandPhoto / 123RF
Current regulations do not allow for eggs to be used posthumously in New ZealandPhoto / 123RF

"There is a gap in the law currently so we want to fill it," Acart chair Dr Kathleen Logan told the Weekend Herald.

"The old guidelines were made before we even came into existence. You only used to be able to store sperm safely. But now you can get eggs out of a woman and store them safely.

"So if a woman was to die having collected eggs, the use of those eggs is not covered by any guidelines at all.

"So we have to fill that gap in terms of enabling egg use after someone has died if they have consented to use for a particular purpose."


Logan added the current rules were "obviously very out of date because they don't take into account the technologies that have been viable for quite a few years now".

It was a view shared by Iris Reuvecamp, the chair of the Ethics Committee of Assisted Reproductive Technology - which considers, determines and monitors applications made by fertility clinics for a range of assisted reproductive procedures and human reproductive research.

She labelled the status quo as "now incredibly out of date".

"The current guidelines only apply to sperm and they don't provide terribly much guidance on the type of factors that need to be taken into account," Reuvecamp said.

The initial consultation period closed in September 2018. In March, Acart released a State One analysis of submissions.

An early consultation document showed youth
An early consultation document showed youth "showed a strong preference" for people to be able to consent for posthumous use of their gametes. Photo / 123RF

Submitters included several fertility clinics, the Health and Disability Commissioner, the Ministry of Justice, the Office of the Chief Coroner, Oranga Tamariki, the New Zealand Nurses Association and several everyday New Zealanders.

Responses were also received from a 104-strong group of school students, as Acart was keen to get youth views on the issue.

The consultation analysis document revealed students "showed a strong preference for someone's right to be able to consent to what happens to them after death".

"That [canvassing youth] was an explicit decision because I work for the Children's Commissioner and we have a big role to play in promoting the rights of children and young people to have a say in policy development and decisions we make about the world," Logan said.

"Largely we came away appreciating that young people thought it was . . . okay to consent to posthumous reproduction [that] it should be based on what the people wanted."

Acart's committee members were finalising its proposed changes, which were expected to be released in early 2020 for another round of public consultation.

"We have to get the whole committee to agree what the guidelines are and what the document looks like," Logan said.

She said any changes making it easier for New Zealanders to have children – which could include via the posthumous use of eggs and greater use of sperm posthumously - would be hugely welcomed by some families.

But the Acart chair stressed any changes would need to offer protection to all involved, including respecting "consent . . . and people's dignity".

"For people wanting to have a family it is big to them," Logan said.

"In the scheme of things there are a lots of other important issues in the world. So posthumous reproduction is quite a small thing that might not be the most important thing for the powers that be to be interested in. But Acart has a body that is trying to set policy, close legal gaps and make it possible for people to create families."

Health officials have predicted a rise in applications for the posthumous use of sperm. Photo / 123RF
Health officials have predicted a rise in applications for the posthumous use of sperm. Photo / 123RF

Meanwhile, Reuvecamp predicted the biggest future pending trend in terms of applications would be over the posthumous use of sperm and gametes.

She said current applications to Ecart were in "low single figures", but that was expected to grow.

"We have had two or three cases recently in New Zealand and Australia around posthumous collection of sperm with men who have died suddenly who haven't come to Ecart yet for approval at the point where the partners want to use the sperm.

"But they will.

"We have had one or two from time to time that we have been considering where the sperm is normally stored as the person is about to undergo chemotherapy. That person later dies and we have had applications about can that person or relative use that."

Posthumous Use

What is currently allowed:

The consented use of sperm collected before a man's death as long as all parties meet criteria, including undergoing counselling.

What is not currently allowed:
Use of eggs after the death of a woman.
Use of stored embryos after the death of one or both of the gamete donors.
Retrieval of sperm from a dead man.
Retrieval and use of eggs from a deceased woman.
Retrieval and use of reproductive tissue from a deceased man or woman.
Retrieval and use of sperm or eggs from a person who has become permanently incapacitated and whose death is imminent.