Re H, AE

[2012] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RE H, AE

[2012] SASC 146

Reasons for Decision of The Honourable Justice Gray

24 August 2012

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE

HEALTH LAW - ASSISTED REPRODUCTION REGULATION

Application for orders to, inter alia, remove and preserve spermatozoa from the body of the applicant’s deceased husband - whether Court has jurisdiction to make such orders.

Held: The Court has inherent jurisdiction to make the orders sought.

Coroner’s Act 2003 (SA) s 7, s 22 and s 32; Transplantation and Anatomy Act 1983 (SA) s 21, s 22, s 38(1)(c), Pt 2, Pt 3, Pt 4 and Pt 5; Supreme Court Act 1935 (SA) s 6 and s 17; Supreme Court Act 1970 (NSW) s 23; Supreme Court Act 1991 (Qld) s 8; Anatomy Act 1884 (SA); Sale of Human Blood Act 1962 (SA); Transplantation of Human Tissue Act 1974 (SA); Assisted Reproductive Treatment Act 1988 (SA), referred to.
Reg v Forbes; Ex parte Bevan (1972) 127 CLR 1; DMW v CGW (1982) 151 CLR 491; Grassby v The Queen (1989) 168 CLR 1; Reid v Howard (1995) 184 CLR 1; Y v Austin Health [2005] VSC 427; MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231; Re Gray [2001] 2 Qd R 35; Baker v State of Queensland [2003] QSC 2 (6 January 2003); In the Matter of Denman [2004] 2 Qd R 595; Re Floyd [2011] VSC 218 (12 July 2011); S v Minister for Health (WA) [2008] WASC 262 (5 November 2008); Fields v Attorney-General of Victoria [2004] VSC 547 (1 June 2004); Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; AB v Attorney-General of Victoria (Unreported, Supreme Court of Victoria, Gillard J, 21 July 1998, 23 July 1998), considered.

RE H, AE
[2012] SASC 146

Civil

GRAY J.

1. This is an application for an order to remove and preserve spermatozoa from the body of the applicant’s deceased husband. 

2. On 21 March 2011, I heard the urgent ex parte oral application.  On that occasion, I granted the application and made orders in the following terms:

   -that the Court is prepared to make orders sought by the applicant pursuant to the Court’s inherent jurisdiction;

   -that spermatozoa be removed from the late H, AE deceased;

   -that the process be undertaken at the Forensic Science Centre, Adelaide or such other place as the Coroner directs;

   -that an appropriately qualified medical practitioner perform the procedure;

   -that any spermatozoa or tissue removed from the deceased be stored at an appropriate locator at the direction of the Coroner;

   -that any spermatozoa or tissue removed not be used for any purpose at all without an order of this Court;

   -that the Coroner take steps to appropriately store any removed spermatozoa or tissue.

   My reasons for making these orders follow. 

3. Important issues arise for consideration regarding the jurisdiction of this Court.  Applications like this, and applications as to the use to be made of the spermatozoa removed from a deceased or nearly deceased person’s body, are charged with ethical, legal and other issues, and have been the subject of substantial commentary.[1]  This would appear to be the first application of its kind in this State.  However courts across Australia have been called on to consider similar issues to those the subject of these reasons, with differing results.

   [1]    See for example Rebecca Collins, ‘Posthumous Reproduction and the Presumption Against Consent in Cases of Death Caused by Sudden Trauma’ (2005) 30 Journal of Medicine and Philosophy 431; Sheila A M McLean, ‘Post-mortem Human Reproduction: Legal and Other Regulatory Issues’ (2002) 9 Journal of Law and Medicine 429; Sarah Jones and Grant Gillett, ‘Posthumous Reproduction: Consent and its Limitations’ (2008) 16 Journal of Law and Medicine 279; Marett Leiboff, ‘Post-Mortem Sperm Harvesting, Conception and the Law: Rationality or Religiosity?’ (2006) 6 Queensland University of Technology Law and Justice Journal 193; Simon Cooke, ‘Use of Sperm After Death in Victoria’ (2005) 13(10) Australian Health Law Bulletin 113; Marett Leiboff, ‘Of the Monstrous Regiment and the Family Jewels’ (2005) 23 The Australian Feminist Law Journal 33; Lindy Willmott and Ben White, ‘Harvesting Sperm of the Deceased: A New Chapter?’ (2004) 12(9) Australian Health Law Bulletin 105; Lindy Willmott and Ben White, ‘Life After Death: Harvesting Sperm of the Deceased’ (2003) 11(8) Australian Health Law Bulletin 85; Amanda Wynne, ‘Consent, Comatose Patient and Taking of Sperm for Posthumous Use’ (2001) 9(4) Australian Health Law Bulletin 37; Margaret Otlowski, ‘AB v Attorney-General (Vic)’ (1999) 6 Journal of Law and Medicine 226; Belinda Bennett, ‘Posthumous Reproduction and the Meanings of Autonomy’ (1999) 23 Melbourne University Law Review 286; Anne Winckel, ‘The Dead Man’s Sperm Case’ (1998) 23 Alternative Law Journal 288; The Parpalaix Case and Post-Mortem Insemination’ (1984) 58 Australian Law Journal 627; Danuta Mendelson, ‘Substituted Consent: From Lunatics to Corpses’ (2007) 14 Journal of Law and Medicine 449; Carson Strong, ‘Ethical and Legal Aspects of Sperm Retrieval After Death or Persistent Vegetative State’ (1999) 27 Journal of Law, Medicine and Ethics 347; Gladys B White, ‘Commentary: Legal and Ethical Aspects of Sperm Retrieval’ (1999) 27 Journal of Law, Medicine and Ethics 359; Michael R Soules, ‘Commentary: Posthumous Harvesting of Gametes – A Physician’s Perspective’ (1999) 27 Journal of Law, Medicine and Ethics 362.

   Background

4. H, AE died as the result of injuries sustained in a motor vehicle accident at about midday on 19 March 2011, a Saturday.  This application was made on the following Monday, 21 March 2011.  At that time, the deceased’s body was in the custody of the Coroner of South Australia. 

5. The applicant sought to recover spermatozoa from the deceased so as to leave open the possibility of conceiving children by him.  The applicant and the deceased intended to have children.  The deceased left a will naming the applicant as his executor and making provision for children. 

6. The medical practitioners required certainty as to their authority to harvest tissue and spermatozoa.  The Coroner declined to make any order or direction to assist harvesting tissue and spermatozoa.  The applicant then applied to this Court seeking an order authorising a medical practitioner to take samples of tissue and spermatozoa to be preserved.  The circumstances attending the application were very urgent.  The medical information before the Court suggested that for viable spermatozoa to be preserved, it was necessary to harvest the spermatozoa within about 48 hours of death. 

7. It is important to note the scope of the application; it was limited to the taking and preserving of the tissue and spermatozoa.  No order was sought as to use. 

8. From the time the email application was made to the Registry of this Court to the time I heard and granted the application, less than one hour had passed.  The order was sealed by the Court just a few hours later.  As mentioned above, the orders were made in circumstances of great urgency. 

9. I was satisfied that the making of the order in the inherent jurisdiction of the Court, in the circumstances of the application, was justified.  In effect, the order preserved the subject matter of the proceeding. 

10. Once jurisdiction was accepted, ordinary principles relating to the preservation of the subject matter of the proceedings favoured the grant of the order.  There was no suggestion of injury to others.  If the order had not been granted, determination of the more substantial question of whether the applicant be permitted to use any viable spermatozoa would have been foreclosed.  As earlier mentioned, there was no time for detailed submissions regarding the jurisdiction of the Court.  Following the oral submissions, I received written submissions on behalf of the applicant.  I also received notification that the Attorney-General for the State of South Australia did not wish to be heard on the question of jurisdiction.

11. In reliance on the authority given by my order of 21 March 2011, a qualified medical practitioner removed spermatozoa and associated tissue from the deceased’s body, which is being preserved in accordance with the terms of my order.  The Court has been informed that at least some of the spermatozoa is viable. 

    Jurisdiction of the Court

12. There is some debate in the authorities on the scope of the inherent jurisdiction of this Court to make orders in the circumstances of the within application.  I propose to review these authorities in addition to considering relevant legislation. 

13. There is ethical and legal debate over post-humous reproduction.  However, I wish to make clear again that the use to be made, if any, of the spermatozoa extracted was not the subject of my order and is not the subject of these reasons.  I am concerned solely in these reasons with the existence or otherwise of the jurisdiction in this Court to order the removal of the spermatozoa and associated testicular tissue for preservation. 

14. In these reasons, I first consider whether any statutory provisions provide jurisdiction to make the orders that were sought.  After concluding that there is no relevant provision, I turn to address the inherent jurisdiction of the Court.

    The Relevant Statutory Scheme

15. The deceased’s body came under the exclusive control of the State Coroner.[2]  Section 7 of the Coroner’s Act 2003 (SA) sets out the functions of the Coroner as being: to administer the Coroner’s Court; to oversee and co-ordinate coronial services in the State; and, to perform such other functions as are conferred on the Coroner by or under the Coroner’s Act or any other Act. Section 22 confers powers of inquiry on the Coroner, including the power to direct a medical practitioner who is a pathologist,[3] to perform a post-mortem examination of the body of a dead person.[4]  The Coroner, pursuant to section 32, also has the power to authorise disposal of human remains.  Save for the purposes of section 7 or for the purposes of a post-mortem, the Coroner does not appear to have any express power to authorise the taking of spermatozoa from the body of a deceased person.

    [2]    Coroner’s Act 2003 (SA) section 32.

    [3]    Or some other person or body considered by the Coroner or the Court to be suitably qualified.

    [4]    Coroner’s Act 2003 (SA) section 22(1)(i)(i).

16. Section 38(1)(c) of the Transplantation and Anatomy Act 1983 (SA), makes it an offence to:

    remove tissue from the body of a deceased person for a purpose or use referred to in section 21(1) or 22(1) except in pursuance of an authority that is under Part 3 sufficient authority for the person to remove the tissue for that purpose or use; …

17. Section 21 of the Act regulates removal of tissue from a deceased person in hospital:

    (1)    A designated officer for a hospital may, subject to and in accordance with this section, by instrument in writing, authorise the removal of tissue from the body of a person who has died in the hospital or whose dead body has been brought into the hospital—

    (a)     for the purpose of the transplantation of the tissue to the body of a living person; or

    (b)     for use of the tissue for other therapeutic purposes or for medical or scientific purposes.

    Accordingly, a designated officer may only authorise the removal of the tissue for one of the purposes in sections 21(1)(a) or 21(1)(b) of the Act.  “Medical or scientific purposes” is not defined in the Act. 

18. The Transplantation and Anatomy Act was introduced in 1983 and repealed the Anatomy Act 1884 (SA), the Sale of Human Blood Act 1962 (SA) and the Transplantation of Human Tissue Act 1974 (SA).  Section 22 remains in identical terms to the section as it was when enacted.[5]  In the second reading speech for the relevant Bill, reference was made to the Australian Law Reform Commission report relating to human tissue transplants.  That Report recommended a number of areas of reform and legislative activity in the area of human tissue transplants and made the following recommendations in relation to semen:[6]

    1.   Semen and ova are tissues which should be excluded from the operation of legislation enacted pursuant to this report. The recommendations in the subsequent chapters of this report do not extend to such tissues.

    2.   Legislation, following separate inquiry, should be considered in relation to the artificial insemination of human beings, and the consequences which may ensue from the acts of donating semen for reproductive purposes and the artificial implanting of semen in a woman. Related matters such as the legitimacy of children, the inheritance of property, and matrimonial or family law rights and liabilities, should also be carefully considered.

    [5]    Save for an addition of an “and” between sections 22(3)(a) and 22(3)(b). 

    [6]    Australian Law Reform Commission, Human Tissue Transplants, Report No 7 (1977) 19.

19. In the second reading speech for the Transplantation and Anatomy Bill, it was stated that the Bill closely followed the Law Reform recommendations, going on to state:[7]

    The first object of the Bill is to clarify the law as to the removal and transplantation of human tissue.  In line with the Law Reform Commission’s recommendations foetal tissue, spermatozoa and ova are specifically excluded. …

    [7]    South Australia, Parliamentary Debates, Legislative Council, 16 March 1983, 362 (The Hon JR Cornwall); South Australia, Parliamentary Debates, House of Assembly, 30 March 1983, 794 (The Hon GF Keneally).

20. The Transplantation and Anatomy Act contains provisions which, so far as the donation and use of tissue is concerned, fall into two broad categories: Part 2, Donations of tissue by living persons and Part 3, Donations of tissue after death.  Part 4 of the Act further deals with post-mortem examinations and Part 5 with donation of bodies for anatomical purposes.  As enacted, the Act excluded foetal tissue, spermatozoa and ova from the definition of tissue, but only in relation to Part 2 of the Act; that is, the Part dealing with donations of tissue by living persons.  Section 21 falls under Part 3, Donations of tissue after death and therefore it is inferred that spermatozoa is tissue for the purposes of section 21. 

21. The provision of assisted reproductive treatment, including in vitro fertilisation, is governed by the Assisted Reproductive Treatment Act 1988 (SA). There is nothing in this Act which authorises the removal of spermatozoa from living or deceased persons.

22. The provisions of the Transplantation and Anatomy Act provide context to the circumstances of the within application.  Whether section 21 authorises the removal of spermatozoa from the body of a deceased person where the proposed use is assisted reproductive treatment, is a hypothetical question in the within proceeding.  As the applicant sought and was granted an order of this Court authorising the removal of the spermatozoa, it is not necessary at this time to decide whether assisted reproductive treatment is a “medical or scientific purpose” for the purposes of section 21.  Importantly, it is to be noted that there is no express statutory prohibition on the order for removal.  However, it is relevant to note that the legislation assumes that circumstances may exist where spermatozoa from a deceased person may be removed from his body and used for the purposes of artificial insemination. 

    Inherent Jurisdiction

    Superior Court of Record

23. The Supreme Court is a superior court of record with general jurisdiction.[8] Section 6 of the Supreme Court Act 1935 (SA) provides:

    [8]    See Supreme Court Act 1935 (SA) section 6.

    The Supreme Court of South Australia as by law established is hereby continued as the superior court of record, in which has been vested all such jurisdiction (whether original or appellate) as is at the passing of this Act vested in, or capable of being exercised by that court.

    Section 17 also addresses the jurisdiction of the Court and provides:

    (1)    The court shall be a court of law and equity.

    (2)    There shall be vested in the court—

    (a)the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:

    (i)The High Court of Chancery, both as a common law court and as a court of equity:

    (ii)The Court of Queen's Bench:

    (iii)The Court of Common Pleas at Westminster:

    (iv)The Court of Exchequer both as a court of revenue and as a court of common law:

    (v)The courts created by commissions of assize:

    (b)such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court:

    (c)such other jurisdiction as is in this Act conferred upon the court.     

24. In the often cited authority of Forbes; Ex parte Bevan, Menzies J observed:[9]

    “Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have “inherent jurisdiction”. …

    [9]    Reg v Forbes; Ex parte Bevan (1972) 127 CLR 1, 7.

25. In DMW v CGW, Dawson J made the following observations with respect to the general jurisdiction:[10]

    … A superior court is a court of general jurisdiction, which is not to say that there cannot be jurisdictional limits but rather that it will be presumed to have acted within jurisdiction. This presumption is denied to inferior courts. It has been held that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged”. …

    [10]   DMW v CGW (1982) 151 CLR 491, 509.

26. In Grassby, Dawson J observed the following with respect to the inherent jurisdiction of the Court:[11]

    Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol. 57 (1947) 83, at p. 85, cited by Jacob, The Inherent Jurisdiction of the Court, Current Legal Problems, vol. 23 (1970) 23, at p. 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.

    [11]   Grassby v The Queen (1989) 168 CLR 1, 16-17.

1. Limitation upon the scope of the inherent jurisdiction of the superior courts of the States was suggested by the High Court in Reid v Howard.[12] In that decision the High Court considered whether the inherent power of the Supreme Court of New South Wales or section 23 of the Supreme Court Act 1970 (NSW) authorised the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute. This question arose in the context of a civil court compelling self-incriminatory disclosures. Section 23 of the Act provided that “[t]he Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.” In the joint judgment of Toohey, Gaudron, McHugh and Gummow JJ, it was concluded that:[13]

   [a]lthough it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories 56, the power is not at large. Nor is the jurisdiction conferred by s 23 of the Supreme Court Act. Neither the inherent power nor the completely general terms of s 23 can authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute. …

   [Footnote omitted.]

   [12]   Reid v Howard (1995) 184 CLR 1.

   [13]   Reid v Howard (1995) 184 CLR 1, 16.

   Legal Authorities

2. The Supreme Courts of several of the Australian States have addressed the jurisdiction of the Court seeking access by a widow to the body of a deceased person in order to obtain a semen sample so that an attempt could be made to conceive a child.  In the majority of cases orders have been made. 

3. In MAW v Western Sydney Area Health Service,[14] O’Keefe J of the New South Wales Supreme Court considered the inherent jurisdiction of the Court, and in particular the parens patriae jurisdiction:[15]

   … Subject to the Commonwealth Constitution, the Supreme Court is a court of unlimited jurisdiction and as such has an inherent jurisdiction which is sufficiently wide to meet the requirements of the administration of justice. Such a jurisdiction includes a parens patriae jurisdiction: Secretary Department of Health and Community Services v B (Marion's case) (1992) 175 CLR 218; see also Halsbury’s Laws of England , 4th ed, par 901.

   …

   The parens patriae jurisdiction of the Court is essentially protective in nature (Marion’s case (at 280)) and although broad, is to be exercised cautiously:  J v C [1970] AC 668 at 695; Marion’s case (at 280). Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others: Re Eve (1987) 31 DLR (4th) 1 at 34. Furthermore, it has limits.

   O’Keefe J concluded that the parens patriae jurisdiction did not extend to the Court giving a consent to the surgical procedure proposed in the summons:[16]

   For the foregoing reasons I am of the opinion that within its limits as presently defined the parens patriae jurisdiction of the Court does not extend to authorising a non-therapeutic surgical procedure of the kind contemplated by the present application. It is not a procedure that is necessary to preserve the life of the patient. It is not a procedure which will safeguard, secure or promote, or prevent the deterioration in, the physical or mental health of the patient. It is not a procedure which will promote the well-being of the patient. In these circumstances it could only be authorised by the Court under its parens patriae jurisdiction if yet another special category or case is recognised in respect of the surgical procedure in question in the present case.

   [14]   MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231.

   [15]   MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231, [27], [31].

   [16]   MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231, [41].

4. In Queensland, two members of the Supreme Court have declined to make orders on the basis of a want of jurisdiction.  In Re Gray,[17] Chesterman J refused Mrs Gray’s application to access the body of her deceased husband in order to obtain a semen sample so that she could attempt to conceive a child.  Much like the application before me, the application before Chesterman J sought only the removal and storage of the semen, with any order as to its use to be the subject of further application.  The application was made in circumstances attended with some urgency. 

   [17]   Re Gray [2001] 2 Qd R 35.

5. Mrs Gray’s husband died in his sleep.  This was a sudden occurrence.  The couple had one child and intended to have another in the near future.  The deceased died intestate and his wife, it was considered, would almost certainly be entitled to a grant of administration over his estate.  The deceased’s father gave his consent by affidavit for the removal of the testicular sample for the purposes of freezing and subsequent insemination.  The deceased had given his consent for the removal of organs – recorded on his drivers licence.  The Court was informed that the deceased and Mrs Gray had never discussed the possibility of her conceiving by semen taken after death. 

6. Mrs Gray contended that the Court had the power to make the order either pursuant to section 8 of the Supreme Court Act 1991 (Qld), or the inherent jurisdiction of the Court – specifically of the type described as the parens patriae jurisdiction.  On the first of these submissions, his Honour concluded:[18]

   The applicant submitted that the court had power to make the order by reason of s 8 of the Supreme Court Act 1991 (Qld) and/or its inherent jurisdiction of the type described as parens patriae. Section 8 provides that the court has all jurisdiction that is necessary for the administration of justice in Queensland and, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise. I apprehend that the section does not confer power on the judges of the court to do whatever accords with their own, perhaps idiosyncratic, views of justice. The jurisdiction is to afford justice to litigants according to law, that is, established legal principle. The difficulty in the present case is identifying any principle which would justify making the order. The application is itself an implicit acceptance that neither the widow nor next of kin has a right to interfere with the body. Nothing I have found suggests that the court can create or regulate such a power.

   [18]   Re Gray [2001] 2 Qd R 35, [9].

7. His Honour further considered that the parens patriae jurisdiction did not remedy the deficiency and determined that it was impossible to invoke the parens patriae jurisdiction of the Court “in the case of a body from which life has departed”.[19]  Drawing on settled authority, his Honour considered that there was no right to interfere with the body:[20]

   It appears that the underlying principles of law are that those entitled to possession of a body have no right other than the mere right of possession for the purpose of ensuring prompt and decent disposal. The prohibition on interfering with a body sanctioned by the possibility of criminal prosecution indicates that to remove part of the body for whatever reason or motive is unlawful. …

   [19]   Re Gray [2001] 2 Qd R 35, [11].

   [20]   Re Gray [2001] 2 Qd R 35, [18].

8. Chesterman J concluded that a deceased’s personal representative, or where there is none, the parents or spouse, has “a right to possession of the body only for the purposes of ensuring prompt and decent disposal”.[21]  His Honour considered that a corollary of this is to be found in the duty not to interfere with or violate the body.  Ultimately, Chesterman J considered that the Court did not have any power to make the orders sought but that if it did “the power should not be exercised in the manner sought by [Mrs Gray]”.[22]  Accordingly, Chesterman J refused the application.

   [21]   Re Gray [2001] 2 Qd R 35, [18], [20].

   [22]   Re Gray [2001] 2 Qd R 35, [7].

9. Some three years later in the Supreme Court of Queensland, in the case of Baker v State of Queensland,[23] Muir J adopted a similar approach to that of Chesterman J.

   [23]   Baker v State of Queensland [2003] QSC 2 (6 January 2003).

10. In In the Matter of Denman,[24] Atkinson J in the Supreme Court of Queensland considered an application for removal of spermatozoa of the applicant’s deceased husband.  Atkinson J set out the authorities which had both granted and refused such an application, but noted that there was “no authority binding on [her] requiring [her] to accede to or refuse the application.”[25]  Her Honour observed that the question to be considered was similar to that to be decided on an interlocutory injunction: is there a serious question to be tried and, if so, what does the balance of convenience require should be done?  Her Honour approached it on that basis.

    [24]   In the Matter of Denman [2004] 2 Qd R 595.

    [25]   In the Matter of Denman [2004] 2 Qd R 595, 597.

11. Atkinson J concluded that, there being no express statutory prohibition on the granting of the application, there was a serious question to be tried as to whether or not spermatozoa can or should be removed from a deceased person and used for the purpose of posthumous reproduction.  Referring to the Queensland decisions of Gray[26] and Baker v State of Queensland,[27] her Honour observed:[28]

    Both of the judges who decided the cases I have referred to in Queensland referred to what they regarded as strong public policy arguments against such a course.  Those arguments are valid, but there are also valid public policy arguments in the other direction.

    It is certainly the case that any child born, if that were to happen as a result of successful posthumous reproduction, would be born without a father, but children have been born without fathers for a very long time.  After impregnation, a father may leave the mother permanently or he may die before the birth of the child.  If the father dies before the birth of the child, that child has no father when it is born and yet, from the reading I have been able to do before hearing this case, there does not appear to be any research which suggests that the outcomes for such a child are any worse.

    No doubt it is preferable for a child to have not one but two parents, both of whom fulfil their parental responsibilities, but many children do not have that, and there are many children who do extremely well in one parent families. It cannot be thought that because the child will only have one living parent that will necessarily not be in its best interests, particularly when the alternative is for the child not to exist at all.

    There is room for much debate as to the public policy issues involved in such a case and it may be that the law needs to develop to keep up with scientific advances and the opportunities that those scientific advances have given for children who might not otherwise have been able to be conceived to be born. 

    [26]   Re Gray [2001] 2 Qd R 35.

    [27]   Baker v State of Queensland [2003] QSC 2 (6 January 2003).

    [28]   In the Matter of Denman [2004] 2 Qd R 595, 597-598.

12. Atkinson J concluded that the Court has the inherent jurisdiction to allow behaviour which is not unlawful.  Her Honour considered that where there is no express statutory prohibition, the harvesting of the deceased’s spermatozoa ought to be permitted in the absence of any suggestion of harm to others.  Atkinson J made the following observations about the jurisdiction of the Supreme Court:[29]

    … The Supreme Court, as McPherson J observed in Boyd v. Halstead, ex parte Halstead [1985] 2 QdR 249 at.255, is the “heir to the jurisdiction of the common law courts at Westminster” and “has in its favour the presumption that nothing is outside its jurisdiction unless expressed to be so intended”.

    [29]   In the Matter of Denman [2004] 2 Qd R 595, 598.

13. As to the balance of convenience, Atkinson J concluded that that balance clearly required that the spermatozoa be harvested so that its use could be determined.  If it was not harvested then there was no relief that could be sought by the applicant.  Atkinson J in Re Floyd adopted the same approach.[30]

    [30]   Re Floyd [2011] VSC 218 (12 July 2011).

14. In S v Minister for Health (WA),[31] Simmonds J made an order on the ex parte application of a widow for removal and storage of spermatozoa from the body of a man who had recently died.  His Honour followed an earlier Western Australian decision of Sanderson M who had made an order in similar circumstances.  Sanderson M had founded his jurisdiction on a rule of court which authorised the taking of samples of property.  The tissue was considered to be within the definition of property.  Simmonds J took a similar approach to jurisdiction. 

    [31]   S v Minister for Health (WA) [2008] WASC 262 (5 November 2008).

15. In Fields v Attorney-General of Victoria,[32] an application was brought in the Victorian Supreme Court by the parents of the deceased for an order from the Court for the removal of spermatozoa and associated tissue from their son who died as a result of a car accident.  The deceased was aged 23 years.  The deceased’s wife was also involved in the accident and, at the time of the application, was in intensive care and was not in a position to make the application herself.  Prior to the accident the couple had been attending a fertility treatment program.  Again, the matter was urgent.  Coldrey J referred to an order that he had made in a previous case and to the order made by Gillard J in AB v Attorney-General of Victoria[33] and said that he therefore assumed “that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out”.[34]  Coldrey J ordered that the spermatozoa be removed and stored.  Although his Honour alluded to possible legal impediments to the ultimate fertilisation of the deceased’s wife with any spermatozoa or tissue removed, he described that as “an issue for another day”.[35]

    [32]   Fields v Attorney-General of Victoria [2004] VSC 547 (1 June 2004).

    [33]   AB v Attorney-General of Victoria (Unreported, Supreme Court of Victoria, Gillard J, 21 July 1998, 23 July 1998).

    [34]   Fields v Attorney-General of Victoria [2004] VSC 547, (1 June 2004) [7].

    [35]   Fields v Attorney-General of Victoria [2004] VSC 547 (1 June 2004) [10].

16. In Y v Austin Health,[36] the plaintiff, Ms Y, brought an application seeking, in part, an order that permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of her husband and that such spermatozoa and tissue be stored in accordance with the Infertility Treatment Act 1995 (Vic). Further, Ms Y sought an order that the spermatozoa and associated issue so removed and stored not be used for any purpose without an order of that Court.

    [36]   Y v Austin Health (2005) 13 VR 363.

17. Ms Y’s husband had collapsed unexpectedly and his consciousness became impaired, him being only intermittently aware and interactive.  There was real doubt about his competency.  He was not aware of the application and had not consented to any of the orders sought.  He was registered as an organ donor.  The couple had always intended to have children and at the time that the applicant’s husband collapsed, they had been attempting to achieve pregnancy for about 18 months. 

18. Habersberger J considered in some detail the relevant Victorian legislation, however he observed that he was satisfied that the Court had the inherent jurisdiction to make the orders sought, at least on the basis of treating the application as akin to an interlocutory injunction and considering whether it raised a serious question to be tried. 

19. Counsel for the applicant in the within proceeding submitted that it is desirable to distinguish between, on the one hand, the Court’s power and duty to do justice as the fundamental nature of the inherent jurisdiction and, on the other hand, examples of that jurisdiction such as the Court’s power to control its procedure of the parens patriae jurisdiction.  In this respect, counsel submitted that the better view was that taken by Atkinson J in In the Matter of Denman,[37] to the effect that it is the function of the Court to provide remedies consistent with underlying legal principle, notwithstanding lacunae in the detailed application of the law to changing social or scientific circumstances. 

    [37]   In the Matter of Denman [2004] 2 Qd R 595.

    Conclusion

20. As earlier observed, this Court possesses inherent powers which enable it to give effect to its substantive jurisdiction.  These inherent powers are ancillary or incidental to the Court’s jurisdiction.  Authorities have at times used the expression inherent jurisdiction and inherent powers interchangeably.  Whichever expression is used, a Court is to find within its jurisdiction and has no authority and power to determine matters beyond its jurisdiction.  In Batistatos v Roads and Traffic Authority (NSW),[38] Kirby J discussed the above matters noting in particular that the notions of inherent jurisdiction and inherent powers have not been as yet subject to appropriate constitutional scrutiny.

    [38]   Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, [124]-[136].

21. As this Court is a superior court of record and as it is the successor to the jurisdiction of the common law courts at Westminster, it has in its favour the presumption that nothing is outside its jurisdiction unless it is so intended. 

22. I consider that the orders made are within the inherent jurisdiction of this Court.  The earlier referred to observations of the High Court, and in particular those of Menzies and Dawson JJ, underscore the broad nature of this jurisdiction.  There is no reason to exclude the Court’s jurisdiction over dealings with the body of a deceased person.  To the contrary, there is every reason why this Court should have jurisdiction to deal with every aspect of such a dealing. 

23. Earlier in these reasons reference has been made to the relevant State legislation and to the fact that there is nothing that will prohibit the making of the orders.  That legislation envisages the use of the spermatozoa of the deceased person for the purposes of artificial insemination.  The Court has jurisdiction to make orders preserving the subject matter of litigation.  The tissue removed from the deceased in the present proceeding is the subject of what is in substance a preservation order.  There is a need for an order for extraction to enable preservation to be effected.  For this reason the Supreme Court Civil Rules 2006 (SA) addressing the preservation of property provide jurisdiction. 

24. For the above reasons the earlier referred to orders were made within jurisdiction.