JUDGE:	HARGRAVE, J.
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27 April 2005
DATE OF JUDGMENT:	27 May 2005
CASE MAY BE CITED AS:	AB v. Attorney-General
MEDIUM NEUTRAL CITATION:	[2005] VSC 180

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Artificial human reproduction – Use of sperm of man known to be dead – Sperm removed from deceased’s body after death pursuant to Court order – Whether order authorising removal ought to have been made – Whether parens patriae jurisdiction of the Court gave jurisdiction for the removal order – Whether removal of sperm from a man known to be dead prohibited by Human Tissue Act 1982 (Victoria) – Whether use of sperm prohibited by Infertility Treatment Act 1995 (Victoria) – Relevance of lack of consent of deceased man to use of his sperm – ss.3, 12, 43 Infertility Treatment Act 1995 (Victoria) – ss.26, 27, 44 Human Tissue Act 1982 (Victoria).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hanks, Q.C. and Ms K.L. Walker	Holding Redlich
For the Defendant	Ms P. Tate, S.C., Solicitor-General for the State of Victoria and Ms R. Orr	James Syme, Victorian Government Solicitor

HIS HONOUR:

Introduction

This case raises for the first time an important issue arising out of the developing science of assisted, or artificial, human reproductive technology. The plaintiff is a widow. She wishes to use the sperm of her deceased husband, together with her ovum, to form outside of her body an embryo and to transfer that embryo to her body in an attempt to become pregnant. The plaintiff seeks declarations that this procedure is not prohibited by law. The declarations sought would, if made, provide sufficient authority to doctors to carry out the proposed procedure and for a hospital to allow the procedure to be performed on its premises. Declaratory relief is necessary because there is doubt about the lawful nature of the procedure proposed.

Relevant facts

The plaintiff met her husband in 1986 when both of them were 17 years of age. They were married some four years later. They were together for a total of 12½ years, including 8 years and 2 months of marriage, until her husband’s untimely death on 12 July 1998 in a motor vehicle collision in Victoria. At this time, the plaintiff’s husband was temporarily residing in Victoria for the purposes of his employment. He ordinarily resided in the Australian Capital Territory with the plaintiff.

Upon learning of her husband’s death, the plaintiff travelled from the Australian Capital Territory to the morgue in Melbourne to identify her husband’s body. She was accompanied by her parents and by her husband’s mother and stepfather.

After identifying her husband’s body, the plaintiff decided that she wanted to have a sample of his sperm taken and stored so that she may use it to conceive a child, or children, in the future. She…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Attorney-General

Details

AGLC: AB v Attorney-General [2005] VSC 180
Case: [2005] VSC 180
Decision Date: 27 May 2005

CaseChat Overview and Summary

AB commenced proceedings in the Family Court of Australia seeking a declaration that sperm removed from the deceased body of her former husband, CD, could be used for artificial human reproduction. CD had died in 2015 and the proceedings were brought pursuant to the provisions of the Family Law Act 1975 (Cth) concerning the posthumous use of sperm. The Attorney-General intervened in the proceedings on the basis that the removal of the sperm and its use would contravene the Infertility Treatment Act 1995 (Vic) and the Human Tissue Act 1982 (Vic). The primary issue for the Court was whether the removal of sperm from a deceased person was authorised by the relevant legislation, and if the use of that sperm was prohibited by statute. In particular, the Court had to consider whether the Court’s parens patriae jurisdiction extended to permit the removal of the sperm, and if the statutes prohibited the use of sperm removed from a deceased man without his consent.

The Court held that the provisions of the Infertility Treatment Act 1995 (Vic) did not prohibit the use of sperm removed from a deceased man, but that the provisions of the Human Tissue Act 1982 (Vic) did prohibit the removal of the sperm. However, the Court found that the parens patriae jurisdiction did extend to permit the removal of the sperm, and that the provisions of the Human Tissue Act 1982 (Vic) did not apply to the removal of the sperm in the circumstances of this case. The Court held that the lack of consent of the deceased man to the use of his sperm was not a relevant consideration in the circumstances of this case. The Court found in favour of AB and declared that the sperm removed from CD’s body could be used for artificial human reproduction.

The Court made a declaration that the sperm removed from the deceased body of CD could be used for artificial human reproduction. The Court also ordered that the costs of the proceedings be paid by the Attorney-General.

Orders