Most IVF patients believe in a woman's right to decide what should become of remaining embryos after the death of a partner, according to a new study from the law faculty at the University of Technology, Sydney.
But few understood that, unless they had given express written consent, they would not be able to use the embryos after the death of a partner.
The study of 400 past and present IVF patients concluded rules surrounding the storage of embryos were ''intrusive and disrespectful''.
About 120,000 embryos are in storage facilities around Australia.
''Of all the issues we address in the study, it was on the issue of own use after death of a partner that we found the most dramatic mismatch between law, consent forms and people's express wishes,'' said the study, Enhancing Reproductive Opportunity.
The issue is highlighted by the case of Tim and Maria Cleve. Tim was diagnosed with brain cancer at the age of 23, and though he was not then in a relationship he stored some sperm in case the chemotherapy made him sterile.
Three years later he fell in love with Maria, who lived near him in the town of Kilmore, an hour north of Melbourne, and two years into their marriage they began the process of IVF and had a son, Ned.
But ss the pregnancy progressed, so too did Mr Cleve's brain tumour. Mr Cleve lived long enough to cradle his son. Four months later he died.
Mrs Cleve would like to use the frozen sperm to conceive a sibling for Ned, but the couple signed documents agreeing that neither of them would conceive using the other's gametes in the event that one of them died. ''At the time, the reasoning was we tried to live with the attitude that he was going to get better, even though we knew he wasn't,'' Mrs Cleve said. Her only option is to convince a clinic in the ACT or Queensland to do the treatment. Then she needs to persuade the Victorian Assisted Reproductive Treatment Authority to transfer the sperm to that clinic. ''I know Tim would want me to have another baby,'' she said.
The study recommends that the current position of the NHMRC [National Health and Medical Research Council] ethical guidelines and state legislation requiring express written consent to posthumous use by the deceased should be reversed, to help people like Mrs Cleve.
The lead author, Professor Jenni Millbank, said the presumption should be in favour of allowing surviving partners to use stored embryos.
''The law regards it as the exception, that it's something we should have written consent for and that it's weird and wrong,'' Professor Millbank said.
''But the people we spoke to thought the deceased had implicitly consented to the survivors having control by doing IVF.
''It was a very strong finding that it wasn't a decision for clinics, it wasn't a decision for government, it was a decision for survivors.''
In fact, it was a ''myth'' that survivors retained any control over the embryos, because if they gave instructions for them to be donated or held forever, those wishes would be ignored anyway, Professor Millbank said.
The Fertility Society of Australia, an organisation for IVF clinics, had an informal policy of free storage for servicemen ''in case they don't come back,'' said Michael Chapman, the society's vice president.
But he said they were encouraged to give written consent for partners to use their gametes in that event. They are also advised to change their wills to that effect.
Professor Chapman agreed that if patients had undergone IVF treatment, they had implicitly consented to the use of those embryos.
''If I was a man who had put sperm in storage, to some extent I would believe that it might be used if I passed away,'' he said.
But, in accordance with the law, his clinic, IVF Australia, advised patients that if there was no express consent form for the posthumous use of embryos, they may be destroyed.