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Widow's new bid for baby

Herald Sun, Victoria, Australia, Patrick O'Neil, April 27, 2005

SEVEN years after the death of her husband a young widow is fighting a landmark legal battle to use his sperm to conceive their baby.

The woman's husband, then 29, died in a motorcycle accident in Melbourne in 1998.

Within 24 hours of his death the woman, known only as AB, won a Supreme Court order authorising the removal and storage of her husband's semen.

The order was believed to be the first of its type in Australia.

But the court blocked her from using the sperm and it has been stored under the provisions of the Infertility Treatment Act 1995 ever since.

Victorian law bans insemination with the sperm of a dead man.

Now 36, AB is approaching the end of her fertility and believes it is now or never if she wants to have her husband's baby.

AB and her husband were childhood sweethearts and had been married for about 10 years before his death. The couple had no children.

Doctors have confirmed the sperm is fertile.

AB's lawyers said she had continued her battle to have her husband's baby but legal restrictions, until recently, blocked further steps.

This is the first time the matter has reached court since 1998.

The Victorian Attorney-General is fighting the woman's request to have the child.

AB's lawyers have asked the court to revoke a law passed on July 13, 1998, blocking use of the sperm without a court order.

The law was passed after the court allowed AB to have her husband's sperm removed.

AB hopes to conceive using intracytoplasmic sperm injection -- a method of IVF where a single sperm is injected into her ova outside her body, forming an embryo. The embryo would then be returned to AB's uterus.

Lawyer Carmen Currie, for AB, said amendments to the Infertility Treatment Act 1995 in 2001 and 2003 allowed AB to undertake the common IVF procedure with her husband's sperm.

"This procedure that our client wants done was previously banned," Ms Currie said. "There is now nothing in the law that should prohibit her type of treatment."

Pamela Tate, SC, for the Attorney-General, argued the procedure should not be allowed because AB's husband was not able to give his consent.

"There is no evidence he consented to the posthumous conception," Ms Tate said.

"One could not presume from marriage or duration of marriage that meant consent."

Ms Tate said it was an offence for anyone to use the sperm of a dead man without that consent.

After learning of her husband's death, AB flew from her interstate home and went to the Coroner's Court, where his body had been taken.

AB decided she wanted to have his semen removed and soon after won the right in court.

In 1998, she told the Herald Sun her marriage was extremely close.

"The relationship between my husband and myself was intensely personal and private," she said at the time.

The case, before Justice Kim Hargrave, continues today.