Re H, AE (No 2)

Case [2012] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RE H, AE (No 2)

[2012] SASC 177

Judgment of The Honourable Justice Gray

12 October 2012

PERSONAL PROPERTY - DEFINITION AND CLASSIFICATION - OTHER MATTERS

PERSONAL PROPERTY - OWNERSHIP AND POSSESSION - POSSESSION

HEALTH LAW - ASSISTED REPRODUCTION REGULATION

Application for a declaration that the applicant is entitled to possession of sperm of her late husband extracted shortly after his death pursuant to an order of this Court - although the remedy sought does not extend to the use to be put to the sperm, it is apparent that the applicant intends to use the sperm to procure pregnancy by in vitro fertilisation - whether the applicant is entitled to possession of the deceased's sperm.

Held: The Court, in its inherent jurisdiction, retains control of the use of the sperm – the applicant made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the Court – before an order for release can be made, a concern raised by the Attorney-General for the State of South Australia should be addressed.

Crown Proceedings Act 1992 (SA) s 9; Assisted Reproductive Treatment Act 1988 (SA) s 3, s 4A, s 5, s 6, s 7, s 8, s 9, s 10 and Pt 2; Assisted Reproductive Treatment Regulations 2010 (SA) reg 5, reg 6 and reg 8; Transplantation and Anatomy Act 1983 (SA) s 35 and Pt 7; Assisted Reproductive Technology Act 2007 (NSW) s 17 and s 23; Assisted Reproductive Treatment Act 2008 (Vic) s 46; Human Reproductive Technology Act 1991 (WA) s 3 and s 6; Research Involving Human Embryos Act 2002 (Cth) s 8 and s 11, referred to.
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478; Re H, AE [2012] SASC 146; MAW v Western Sydney Area Health Service (2009) 49 NSWLR 231; Re Gray [2001] 2 Qd R 35; Baker v State of Queensland [2003] QSC 2; In the Matter of Denman [2004] 2 Qd R 595; Re Floyd [2011] VSC 218; S v Minister for Health (WA) [2008] WASC 262; Fields v Attorney-General of Victoria [2004] VSC 547; Y v Austin Health (2005) 13 VR 363; Williams v Williams [1882] 20 Ch D 659; Goodeward v Spence [1908] 6 CLR 406; Roche v Douglas (2000) 22 WAR 331; Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996); Yearworth & Ors v North Bristol NHS Trust [2010] QB 1; Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207; In re Organ Retention Group Litigation [2004] EWHC 664 (QB), considered.

RE H, AE (No 2)
[2012] SASC 177

Civil

GRAY J.

  1. This is an application for a declaration that the applicant is entitled to possession of sperm…

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Re H, AE (No 2) [2012] SASC 177
Case
[2012] SASC 177
Decision Date

CaseChat Overview and Summary

The applicant in this case sought a declaration that she was entitled to possession of the sperm of her late husband extracted shortly after his death, in order to procure pregnancy by in vitro fertilisation. The deceased had died before the couple had a chance to start a family, and the applicant sought to use the sperm to achieve this goal. The legal issue before the court was whether the applicant was entitled to possession of the deceased’s sperm.

The court found that the applicant had made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the court. The court held that in its inherent jurisdiction, it retained control of the use of the sperm. The court considered the evidence before it, including the deceased’s email to the applicant expressing his desire to have children with her, and the couple’s attempts to conceive a child before the deceased’s death. The court also considered the Research Involving Human Embryos Act 2002 (Cth), which regulates the provision of assisted reproductive treatment and restricts the use of an embryo to accredited assisted reproductive treatment centres.

The court held that the applicant had made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the court. Before an order for release could be made, a concern raised by the Attorney-General for the State of South Australia should be addressed.

The court's decision highlights the importance of balancing the rights of the deceased with the interests of the surviving spouse and any potential child. The court recognised the applicant's desire to have a child with her late husband but also emphasised the need for careful consideration of the ethical and legal issues involved in posthumous reproduction. The court's decision ensures that the use of the deceased's sperm is subject to appropriate oversight and regulation, in accordance with the law and ethical guidelines.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Research Involving Human Embryos Act 2002 (Cth) regulates the provision of assisted reproductive treatment. Section 11 restricts the use of an embryo, relevantly, to accredited assisted reproductive treatment centres. Accredited assisted reproductive treatment centres are defined as those accredited by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia.[6] Accreditation by the Reproductive Technology Accreditation Committee is contingent upon compliance with the National Health and Medical Research Council Guidelines.[7] [6] Research Involving Human Embryos Act 2002 (Cth) section 8. [7] See the Reproductive Technology Accreditation Committee of the Fertility Society of Australia, Code of Practice for Assisted Reproductive Technology Units, October 2010.The Evidence Before the Court The applicant is a 28 year old school teacher. The deceased was an engineer. In 2003 the applicant and the deceased commenced a de facto relationship. They lived together in that relationship for five years. During that time, they discussed having children. On 26 March 2003, the deceased sent an email to the applicant, saying “I can’t believe your [sic] mine, love you so much, I have never wanted to be with someone as much as you, you make my life so much more enjoyable and fulfilling and one day I hope we can be living together and cleaning up our kids mess in our house”. The deceased made a will dated 3 April 2009 in contemplation of marriage. The will appoints the applicant as executor and trustee and also makes her the residuary beneficiary of the deceased’s estate. The will provided that in the event that the applicant predeceased the deceased and there be a child or children to the marriage, the residuary estate is left to that child or those children. On 4 April 2009, the applicant and the deceased married. The applicant deposed that they married as they thought it would be best for their children and as they had decided to start preparing to have a family together. For her birthday in November 2009, the deceased bought the applicant a book titled “A World of Baby Names”. When the couple first became serious about having a family, the deceased searched the internet for information about paid parent scheme entitlements. A print-out dated 15 December 2009 relevant to this search is before the Court. In late 2009, the applicant and the deceased commenced serious attempts to conceive a child. The deceased’s sister, however, announced in January 2010 that she was pregnant, so the applicant and the deceased put their conception plans on hold in an attempt not to “spoil the moment” for the deceased’s sister. In June 2010, the deceased began taking a vitamin supplement in contemplation of starting a family, after being advised by her general practitioner in April 2010 to do so. In September 2010, the applicant and the deceased recommenced their attempts for a child. The couple were excited and decided to make a photographic record of any pregnancy. The deceased took photographs of the applicant front and side on, and the couple planned to do the same for each month of pregnancy to record the change and growth in the applicant’s body.

Decision

Reasons for decision

GRAY J
In Yearworth v North Bristol NHS Trust,[19] the Court concluded that there was ownership in the sperm, but did so on a broader basis than simply relying on the exception established by Griffith CJ in Doodeward v Spence.[20] The Court relevantly found:[21](a) In this jurisdiction developments in medical science now require a re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise. …(c) For us the easiest course would be to uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in the Doodeward case 6 CLR 406. We would have no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen at minus 196C was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. We would regard R v Kelly [1999] QB 621 as entirely consistent with such an analysis and the Dobson case [1997] 1 WLR 596 as a claim which failed for a different reason, namely that the pathologist never undertook to the claimants, and was not otherwise obliged, to continue to preserve the brain. (d) However, as foreshadowed by Rose LJ in R v Kelly [1999] QB 621, we are not content to see the common law in this area founded upon the principle in the Doodeward case 6 CLR 406, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes? (e) So we prefer to rest our conclusions on a broader basis. (f) In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated. …[Emphasis added.][19] Yearworth & Ors v North Bristol NHS Trust [2010] QB 1.[20] Doodeward v Spence [1908] 6 CLR 406.[21] Yearworth & Ors v North Bristol NHS Trust [2010] QB 1, [45]. In Bazley v Wesley Monash IVF Pty Ltd,[22] White J of the Supreme Court of Queensland was concerned with straws of sperm which had been extracted from the deceased and stored prior to the deceased’s death. Her Honour considered whether the sperm was property which could form part of the deceased’s estate and observed:[23]The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. The arrangement could also come to an end when the respondent died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner which it was held, which preserved its essential characteristics as frozen semen capable of being used. …[22] Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207. [23] Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207, [33].

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Rajan Nagesh, a psychiatrist, is of the opinion that the applicant has been through what “many would regard as an Adjustment Disorder with Mixed Emotional Disturbance with Features of Depression and Anxiety” in response to the death of the deceased. Dr Nagesh expressed this as a “one time” disorder and opined that the applicant was continuing to improve. Dr Nagesh considered that the nature and manner of the applicant’s loss rendered her highly vulnerable to a major depressive disorder but, despite that, she has not suffered from such a disorder. In Dr Nagesh’s opinion, this is so due to the applicant’s strong premorbid personality with high level functioning and resilience, the high level of support received from family and friends, and the high level of support provided by the applicant’s work as a teacher. Dr Nagesh expressed the view that he did not believe that the applicant was arriving at the decision to have a child through in vitro fertilisation using the deceased’s sperm, exclusively or predominantly, as a part and parcel of her grieving process. Consideration of the Application I have reached the conclusion that the applicant and the deceased had decided to start a family and that but for the death of the deceased, their attempts to do so would have continued. I consider that the applicant, as a mother, would provide a loving, caring and stable environment for her child. I am satisfied that she is in a position as a mother to meet the emotional needs of her child. I am satisfied that the applicant is in a position to meet the material needs of raising a child. I am satisfied that there is wider family support for the applicant in the event of her motherhood. In reaching these conclusions, I have had regard to the evidence referred to earlier in these reasons. The applicant has adopted a responsible attitude to the within application. She is a determined and courageous woman. For the reasons that follow, I consider that the Court, in its inherent jurisdiction, retains control of the use of the sperm. However, I consider that the applicant has made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the Court. In reaching my conclusions, I have considered a number of articles and other papers addressing what may be described as the ethical and moral issues arising from this application.[9] These articles and papers have emphasised the interests of the child to be conceived. I have also considered relevant legal authorities, both in Australia and other jurisdictions.[10] There are precedents for the release of sperm in comparable circumstances to those arising in the within proceedings. It is to be noted that the applicant sought an order that she was entitled to the sperm as though it was a species of property over which she could claim ownership. The issue of whether the deceased’s sperm which has been extracted and preserved is subject to property rights requires some consideration. [9] 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.[10] See for example 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; In the Matter of Denman [2004] 2 Qd R 595; Re Floyd [2011] VSC 218; S v Minister for Health (WA) [2008] WASC 262; Fields v Attorney-General of Victoria [2004] VSC 547; Y v Austin Health (2005) 13 VR 363. A discussion of these authorities can be found in H, AE [2012] SASC 146.