Retrieval and Use of Sperm after Death: In the Matter of Lee (Deceased) and Long (Applicant) [2017] NZHC 3263

(2018) Otago Law Review 99

13 Pages Posted: 13 Aug 2019

Date Written: August 9, 2018


As a result of advances in medical technology in the second half of the 20th century, it is now possible for children to be conceived ex vivo through utilising artificial human reproductive technology (hereinafter referred to as ART). This has inevitably led to a myriad of novel and often difficulty legal questions for judges and regulators to contend with. Particular difficulties arise where one of the gamete providers to a proposed ART procedure has died prior to it being carried out. Pre-conception controversies focus on the entitlement, if any, to harvest sperm from the potential father when he is not in a position to consent by reason of incapacity (being in a coma, for instance) or death, as well as the related question as to whether the sperm can then be used in an ART procedure for the purposes of posthumous reproduction by his surviving wife or partner. One such pre-conception controversy came before the New Zealand High Court recently in Re Lee (Long) and is the subject of this comment. This case is a good example of the difficult and fraught nature of litigation involving posthumous conception, as well as the legal vacuum in which judges must currently operate in New Zealand in such cases.

Keywords: Fertility Law; Posthumous Conception; Jurisdiciton

JEL Classification: K30; K40

Suggested Citation

Maddox, Neil, Retrieval and Use of Sperm after Death: In the Matter of Lee (Deceased) and Long (Applicant) [2017] NZHC 3263 (August 9, 2018). (2018) Otago Law Review 99, Available at SSRN:

Neil Maddox (Contact Author)

Maynooth University ( email )

Law Department
Maynooth University
Maynooth, County Kildare 00000

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