Increasing numbers of women are asking hospitals to harvest the sperm of their dead or dying partner for IVF.
Experts have called for young men to make special wills recording their consent (or otherwise) for the use of their sperm if they die unexpectedly.
Michael Buist, director of intensive care at Dandenong Hospital, said requests for sperm harvesting were becoming more frequent.
"When I was first confronted with it, I thought 'this is right out of left field, I have got no idea (what to do)'," Associate Professor Buist said. "It's certainly something we have seen a bit more of recently. For people who practise in (intensive care or hospital emergency departments) it's a request that takes most people by surprise."
He is co-author of a paper in the latest Medical Journal of Australia examining the issue.
The paper found a glaring paradox in Victorian law. In many circumstances sperm may be legally harvested; for instance, by consent of the coroner in case of death, or through consent of next of kin if a patient is unconscious.
But harvested sperm cannot lawfully be used in IVF in Victoria without the explicit written consent of the man. The partner must take it to another state in which implied consent is enough.
Co-author Sarah Middleton, a lecturer at the Monash University Law Faculty, said the safest option was to insist on written consent.
Dr Middleton said sperm donation was different from organ donation. In organ donation, doctors could rely on the word of a family member about the deceased's wishes.
But in sperm donation, the person giving evidence of consent was likely to be the woman wanting access to the sperm, she said. "She may have a conflict of interest. It's about the man's reproductive rights, and I think they should survive your death."
She said the idea of taking something from a corpse to create new life was a difficult issue. "It would be good if people were encouraged to record their wishes — (but) people in this reproductive age group aren't usually going to make their intentions clear in writing."
Others have challenged the role of consent in posthumous reproduction.
In the Journal of Law and Medicine last year, Sarah Jones, of the University of Otago, wrote in a paper consent should be considered along with a fuller picture including the values of the sperm donor, the future prospects of the child and the needs and motivations of the mother.
"The interests of deceased and permanently unconscious patients are notoriously difficult to ascertain," the paper said.
Another MJA paper reported that women were freezing their eggs as a form of insurance against their decline in fertility.
The report by the Queensland Fertility Group found success rates with thawed eggs were now close to fresh IVF.
The authors said egg freezing was still an expensive and not always reliable option.
* Nick Miller
