Posthumous collection and use of gametes or embryos

In Western Australia (WA) there are laws relating to the posthumous collection of gametes, but the posthumous use of gametes is currently prohibited.

The Human Tissue and Transplant Act 1982 (external site) may permit the posthumous collection of gametes for transplantation or for a therapeutic, medical or scientific purpose where:

• the deceased person had consented to or expressed a wish for the collection; or
• there is no evidence to suggest that the deceased person had an objection to the collection and the senior next of kin consents to the collection.

The Human Reproductive Technology Directions 2021 (external site) prohibits licensed fertility providers from using gametes in an artificial fertilisation procedure after the death of the gamete provider.

Therefore, it may be possible for senior next of kin to consent to the posthumous collection of gametes in some circumstances, however the gametes cannot currently be used in Western Australia.

New assisted reproductive technology and surrogacy legislation for WA from mid-2027

The Assisted Reproductive Technology and Surrogacy (ARTS) Bill 2025 passed the Western Australian Parliament on 3 December 2025 and received Royal Assent on 18 December 2025. Information about the passage of the Bill and a copy of the Assisted Reproductive Technology and Surrogacy Act 2025 (ARTS Act 2025) as passed is available here: WA Legislation website (external site). 

We now enter an approximate 18-month implementation period during which time regulations will be drafted and preparatory work will be carried out by the Department of Health, in consultation with key stakeholders impacted by the changes. The ARTS Act 2025 is expected to commence in mid-2027.

The ARTS Act 2025 amends the Human Tissue and Transplant Act 1982 to clarify requirements for the collection of gametes after the death of a person when this has been requested by the surviving partner of the deceased (or next of kin on their behalf) and authorised by a designated officer. Under the new legislation, posthumous collection cannot be authorised when the deceased is under 18 years of age, or where the designated officer believes that the deceased had expressed an objection to the removal.   

The ARTS Act 2025 also permits posthumous use of gametes and embryos by a surviving partner, with specific requirements. Until the new ARTS Act commences, the posthumous use of gametes will remain prohibited under the Human Reproductive Technology Directions 2021.