In the matter of KD [2026] ACTSC 231

In July 2026, Muller J, in the Supreme Court of the Australian Capital Territory (ACT), made an order authorizing the posthumous use of a stored embryo, despite written instructions from the deceased indicating a desire for his genetic material and embryos to be discarded following death [1].

The facts of this case are particularly heartbreaking. The applicant, KD, and the deceased, CT, had spent several years of their relationship trying to have a child. They underwent multiple rounds of IVF treatment in Australia and overseas but were ultimately unsuccessful in conceiving. During the process of IVF, the couple independently answered questions regarding the fate of their genetic material after death, both expressing a desire for their gametes and embryos to be destroyed. In October 2025, CT was diagnosed with a brain tumor and died less than a month after commencing treatment. At the time of his death, one embryo created using the couple’s gametes remained in storage. Thus, KD applied to the Supreme Court for an order authorizing her to use it in assisted reproduction despite CT’s express refusal [1].

Somewhat surprisingly, the statutory regime in the ACT permits this. Section 36 of the Assisted Reproductive Technology Act 2024 (ACT) generally prohibits ART providers from using the gametes of a deceased person in treatment [2]. However, treatment may proceed if the deceased gamete provider has consented to use in the relevant circumstances [3], or a court order pursuant to Section 37 authorizes treatment to the deceased’s domestic partner [4]. When considering an application under Section 37, the Court must have regard to several factors, including whether the deceased expressly objected to posthumous use [5], and whether, despite that objection, the deceased was likely to have supported treatment for their domestic partner [6]. The legislation therefore makes an express objection by the deceased a relevant consideration for the Court, but not determinative as to whether treatment proceeds.

In granting KD’s application, the Court placed significant weight on the couple’s sustained efforts to become parents during their relationship [1]. This is an understandable starting point and may have been of particular relevance for the Court had CT’s views been unknown. For instance, had CT left no instructions concerning posthumous use, his commitment to parenthood during life might have credibly supported an inference that he would have wished for KD to continue with treatment [7]. CT’s wishes, however, were not unknown, and evidence of his desire to be a father during his lifetime should not have been given equivalent or, indeed, greater weight than his direct answer to that question [1].

This is crucial when the interests in posthumous parenthood are distinct from and more attenuated than those in living parenthood [8, 9]. Becoming a father during his lifetime would have allowed CT to know and raise his child, participate in the child’s daily care, and share the experience of parenthood with KD. However, those interests can no longer be realized for him through posthumous reproduction [9]. Of course, that is not to say that the remaining interests in posthumous parenthood are unimportant. CT may have had critical interests in genetic continuity or in enabling KD to continue their shared reproductive project [9, 10]. But the Court did not separately identify that CT held any such interests. Instead, it treated his general commitment to parenthood during life as sufficient to rebut his express refusal to the posthumous use of his genetic material [1]. This is inappropriate when his wishes were known and documented. Indeed, if participation in IVF and a desire to parent during life are sufficient to overcome an express refusal, there is little purpose in asking patients the separate question regarding posthumous use at all.

The Court further accepted evidence that the couple had not completed the consent documentation with CT’s premature death in mind. The Court found that the couple’s answers regarding posthumous use were directed toward the possibility of their embryos remaining in storage beyond their reproductive years. Therefore, Muller J concluded that CT would likely have consented to KD’s use of the embryo had he been given an opportunity to reconsider in light of his illness [1]. The Court did not, however, find that CT’s refusal was invalid or uninformed. Muller J accepted his refusal as an ‘express objection’ for the purposes of Section 37. It was simply one consideration capable of being outweighed by other evidence [1].

When ‘No’ Means ‘Maybe’

The concern raised by this case is not necessarily the outcome, nor that anyone within the isolated facts was harmed. Muller J applied the discretion conferred upon him by the statute, KD benefited from being permitted to use the embryo in treatment, and, on the view that the dead cannot be harmed, the order did not harm CT [11]. The real problem that this case exposes lies in the fact that the statutory regime permitted the Court to reconsider an express refusal at all, and the implications that this can have for living people who are presently storing their reproductive material in the ACT.

People undergoing fertility treatment have an interest in deciding whether they may become genetic parents after death and in knowing whether the law will give effect to that decision [12]. The ACT statute expressly recognizes that patients might object to posthumous use [5], while simultaneously denying them any means of making that refusal determinative [5, 6]. This essentially operates as a no-consent regime for regulating posthumous reproduction. The deceased’s views are not wholly ignored, and they remain one part of the Court’s assessment. But unlike an inferred or presumed consent regime, an express refusal has no vetoing power [9].

The ACT legislature is certainly entitled to regulate posthumous reproduction in this highly permissive way. It might conclude that a person who has died can no longer be harmed, or that the interests of a surviving partner should sometimes outweigh the previously expressed wishes of the deceased [9]. But this is not an entirely defensible regulatory approach when overriding the expressed wishes of the dead also implicates the interests of the living [11, 13]. Ultimately, a person may opt for their reproductive material to be destroyed after death precisely because they do not wish to become a genetic parent posthumously. Yet the effect of the statutory scheme in the ACT is that their choice in this regard remains open to later reconsideration by a court at a time when they are no longer around to defend it [1, 5, 6].

On the view that the dead lack interests, this will not harm the deceased. It does, however, deprive the living of any reliable means to protect an interest in avoiding posthumous reproduction whilst they are alive. Moreover, it is harmful to the interests of living people generally to know that their wishes may not be respected when they die [11, 13]. A defensible statutory scheme for regulating posthumous reproduction should distinguish between inferring wishes where the deceased’s views are unknown and overriding a contemplated and documented instruction [9, 13]. In the absence of such a distinction, an express ‘no’ to posthumous reproduction can become a ‘maybe’ depending on the circumstances [1].

References

[1] In the Matter of KD [2026] ACTSC 231.

[2] Assisted Reproductive Technology Act 2024 (ACT), Section 36(1).

[3] Assisted Reproductive Technology Act 2024 (ACT), Section 36(2)(a).

[4] Assisted Reproductive Technology Act 2024 (ACT), Section 36(2)(b).

[5] Assisted Reproductive Technology Act 2024 (ACT), Section 37(2)(d).

[6] Assisted Reproductive Technology Act 2024 (ACT), Section 37(2)(e).

[7] Carson Strong, ‘Consent to Sperm Retrieval and Insemination after Death or Persistent Vegetative State’ (2000) 14 Journal of Law and Health 243.

[8] John Robertson, ‘Posthumous Reproduction’ (1994) 69(4) Indiana Law Journal 1027.

[9] Claire McGovern, ‘Posthumous Parenthood: Autonomy, the Dead, and Interests in Reproduction’ (2024) 20 Journal of Health and Biomedical Law 1.

[10] Shelly Simana, ‘Creating Life after Death: Should Posthumous Reproduction be Legally Permissible Without the Deceased’s Prior Consent?’ (2018) 5 Journal of Law and the Biosciences 329.

[11] Joan Callahan, ‘On Harming the Dead’ (1987) 97 Ethics 341.

[12] Belinda Bennett, ‘Posthumous Reproduction and the Meanings of Autonomy’ (1999) 23 Melbourne University Law Review 286.

[13] Hilary Young, ‘Presuming Consent to Posthumous Reproduction’ (2014) 27 Journal of Law and Health 53.