A woman has won the right to have sperm taken from the dead body of her long-term partner.
The High Court in Auckland has granted the woman permission to extract the sperm but directed she must get permission from an ethics committee before using the sperm in fertility treatment.
In his finding released to the media today, Justice Heath noted that no legislation or regulations deal with the ability to take sperm from a dead man.
There have been cases in the past where men have donated sperm but later died. Courts have wrestled with whether that sperm can be used and by whom.
Justice Heath acknowledged that the intersection where law and health science met was fraught with danger.
The law was difficult enough where the man and woman were alive, but when one of them dies, the difficulties became more intense, he said.
In this case the man, given the pseudonym Mr Lee, and woman, known as Ms Long, were in a 20-year de-facto relationship. They had undergone fertility treatment and the woman was pregnant with their first child when the man died suddenly and unexpectedly.
They had told close friends and family that they wanted more than one child.
Ms Long approached the court to have sperm removed from Mr Lee's body. The move was supported by Ms Long's immediate family.
But that had to be done straight away.
There was only a 48-hour window to extract sperm from a dead man. Ms Long sought an urgent order from the court and one of Mr Lee's testicles was removed.
It was put on ice and given to a fertility clinic, acting as agents of the court.
The sperm was removed from the testicle before it was returned to Mr Lee's body and buried.
Justice Heath allowed the move before a substantive hearing could be held.
He found the High Court had jurisdiction to make the decision.
But he also said the ethical and moral dilemmas involved in fertility treatment were not well suited to the courts.
Justice Heath concluded the court could protect Ms Long's right to approach the Ethics Committee, established under the Human Assisted Reproductive Technology Act 2004. The committee would make the ultimate decision.
In order to do that - because of the 48-hour window - the court was right to allow Mr Lee's sperm to be taken.
But it was not up to the court to decide whether Ms Long could use the sperm - that was a decision for the committee, he said.
He also left open the possibility that if the ethics committee declined her request, Ms Long could come back to court for an order to export the sperm to another country where she may be allowed to use it.