Proposed Guidelines for the Posthumous Use of Gametes, Reproductive Tissue and Stored Embryos

Page 1 of 16

Closes 9 Sep 2020

Introduction: Seeking feedback on draft guidelines

ACART is seeking feedback on the proposed draft guidelines for posthumous reproduction, which are intended to replace the Guidelines for the Storage, Use, and Disposal of Sperm from a Deceased Man  (the current guidelines). The content in these draft guidelines is informed by ACART’s stage one consultation in 2018. 

ACART’s approach in the stage one consultation focused on ethical considerations rather than the anticipated regulatory changes. This stage two consultation looks more closely at the changes to the regulatory regime. 

The draft guidelines presented here would require amendments to the Human Assisted Reproductive Technology Act 2004 (HART Act) and the Human Assisted Reproductive Technology Order 2005 (HART Order). There may be implications for the Status of Children Act 1969 and possibly inheritance law, but we make no recommendations about those pieces of legislation here. A change to the HART Act would be needed for minors to decide what would happen to their stored tissue once they turned 16 years of age. The HART Order would need to be amended to clarify that established procedures relating to the collection and use of gametes and reproductive tissue apply only to people who are alive and to make all posthumous use of stored embryos subject to ethical review. 

For the purposes of this consultation document, the terms ‘man’ and ‘woman’ refer to biological sex, consistent with the HART Act. We acknowledge not all people have a gender identity that falls within the binary categories of male and female and that people may have gender identities that differ from their biological sex.

ACART’s definition of posthumous reproduction

In ‘posthumous reproduction,’ it is important to keep in mind that the person will be deceased when their gametes or reproductive tissue are used and when any resulting child is both conceived and born. In this document, the term ‘posthumous reproduction’ includes:

  • the retrieval, storage and use of gametes and reproductive tissue after a person’s death
  • the use of gametes, embryos or reproductive tissue frozen before death
  • the creation, storage and/or use of embryos after a person’s death  

A person may have consented during their lifetime to the posthumous collection, storage and use of their gametes or reproductive tissue. Where gametes are collected and stored during a person’s lifetime, it is standard practice in New Zealand for fertility clinics, at the time of storage, to record what the person wanted to happen to their gametes in the event of their death.