Re Gray

[2000] QSC 390

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of Gray [2000] QSC 390

PARTIES:

IN THE MATTER OF WARREN ANDREW GRAY
(deceased)

FILE NO:

No 8459 of 2000

DIVISION:

Trial Division

DELIVERED ON:

12 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2000

JUDGE:

Chesterman J

ORDER:

Application refused

CATCHWORDS:

PERSONAL PROPERTY – OWNERSHIP AND POSSESSION – NATURE AND MEANING OF OWNERSHIP OF AND PROPERTY IN PERSONALTY – application by wife of deceased husband for order to remove sperm sample – whether parens patriae jurisdiction applicable – whether applicant had proprietary rights in body

Criminal Code (Qld), s 236
Infertility Treatment Act 1995 (Vic), s 43

Supreme Court of Queensland Act 1991, s 8

Transplantation & Anatomy Act 1979 (Qld), s 23

AB v Attorney-General of Victoria BC 9803488, 12 July 1998;  23 July 1998
Dobson v North Tyneside Health Authority [1997] 1 WLR 596
Doodeward v Spence (1908) 6 CLR 406
Fountain v Alexander (1982) 150 CLR 615
MAW v Western Sydney Area Health Service BC 200003155, 24, 25 April;  3 May 2000
Peirce v Swan Point Cemetery 14 Am Rep 667
Rees v Hughes [1946] KB 517
Reg v Sharpe Dea & Bell CC 160
Secretary, Department of Health and Community Services v JMB & SMB (1991-1992) 175 CLR 218
Williams v Williams [1882] 20 Ch D 659

COUNSEL:

D A Skenner for the applicant

SOLICITORS:

Hogan & Besley Lawyers for the applicant

1. CHESTERMAN J:  The applicant’s husband died in his sleep between 10 pm on 26 September 2000 and 6 am on 27 September.  He was 37 and was believed to be in good health.  His death was completely unexpected.  He and the applicant had lived together for about 14 years.  They married in 1994 and had one child, a son born on 13 August 1999.  The applicant is 42 years old.  She and her husband had discussed having another child.  It was their intention to attempt to do so in the near future. 

1. The applicant wishes to become pregnant by means of artificial insemination utilising semen taken from her dead husband.  The feat is technologically possible but to have any chance of success the fluid must be extracted within 24 hours of death. 

1. The extraction of semen, if it is to be done, would be performed by a doctor associated with Monash IVF Queensland.  The procedure apparently involves the surgical removal of a section of testicle.  Monash IVF will not perform the operation without an order of the Supreme Court.  According to its fact sheet:

“·          Little is known about sperm quality after death.  The attempt at sperm recovery may be ultimately unsuccessful or ineffective . . .

·Ethics committee approval would be required . . . and Monash IVF would not agree to proceeding with treatment unless a year had passed since the death and evidence of appropriate counselling had been obtained”.

If the extraction is to proceed the body samples taken from the corpse will be kept frozen by Monash IVF for at…