Re H, AE (No 2)

[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 of her late husband extracted shortly after his death pursuant to orders of this Court.[1] 

   [1]    The terms of those orders were:

   -     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.

   Introduction

2. On 19 March 2011, the deceased died in a motor vehicle accident in South Australia.  On 21 March 2011, the applicant commenced urgent proceedings by summons.  I heard an ex parte application that day.  I granted the application and made an order that sperm be removed from the deceased and that any sperm removed from the deceased be preserved and stored at the direction of the Coroner.  I further ordered that the sperm not be used for any purpose without an order of the Court.  I was prepared in the circumstances of the application to make the order pursuant to the inherent jurisdiction of the Court.  I have published separate reasons in respect of that decision.[2] 

   [2]    Re H, AE [2012] SASC 146.

3. By application dated 4 August 2011, the applicant sought a declaration from this Court that she is entitled to possession of the sperm recovered from the deceased and an order for its release to her.  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.  The applicant supported the within application by two affidavits, dated 3 August and 7 October 2011. 

4. The Attorney-General intervened, pursuant to section 9(2)(a) of the Crown Proceedings Act 1992 (SA), to make submissions regarding the interpretation of the relevant South Australian legislation arising for consideration in the within application regarding the use of the sperm. There are no legislative provisions directly regulating the applicant’s rights or entitlement to possess the sperm, however, the Attorney-General sought to make submissions on the manner in which South Australian legislation restricts access to in vitro fertilisation.   Counsel made clear that the Attorney-General did not appear as a contradictor to the relief sought by the applicant, or to make submissions about the jurisdiction of the Court generally.  The Attorney-General also did not consent to or oppose the relief sought.  In short, the Attorney-General advanced submissions on the assisted reproductive treatment[3] scheme in South Australia, governed by the Assisted Reproductive Treatment Act 1988 (SA). The Attorney-General contended that the legislative restrictions on obtaining in vitro fertilisation are relevant when considering whether to exercise the discretion to grant declaratory relief.[4]  It was pointed out that the utility of a declaration is a relevant matter for the Court which is to be considered in the exercise of the discretion to grant declaratory relief.

   [3]    Some jurisdictions refer to the process as assisted reproductive “treatment”, while others use the term “technology” instead.  For the purposes of these reasons, the term “treatment” is generally used for convenience. 

   [4]    The Court’s power to make a declaratory order is limited only by its own discretion: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 435-6.

   The South Australian Legislative Scheme

5. In South Australia, the provision of assisted reproductive treatment, including in vitro fertilisation, is governed by the Assisted Reproductive Treatment Act.  By section 3 of the Act, assisted reproductive treatment is defined to mean “any medical procedure directed at fertilisation of a human ovum by artificial means and includes an in vitro fertilisation procedure”.

6. The Attorney-General sought to emphasise the importance of section 4A of the Act in the process of interpreting the provisions of the Act.  Section 4A is headed “Welfare of child paramount” and provides:

   The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment in accordance with this Act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of this Act.

7. The Act does not directly legislate as to who may obtain assisted reproductive treatment, but rather it regulates the persons who may provide assisted reproductive treatment.  It is an offence for a person to provide assisted reproductive treatment unless that person is authorised to do so in accordance with the Assisted Reproductive Treatment Regulations 2010 (SA) and unless that person is registered under Part 2 of the Act. Section 5 falls under Part 2 and provides:

   Authorisation and registration required to provide assisted reproductive treatment

   (1)A person must not provide assisted reproductive treatment unless the person is authorised to do so in accordance with the regulations and registered under this Part.

   Maximum penalty: $120 000.

   (2)Subsection (1) does not apply in relation to assisted reproductive treatment consisting of—

   (a)assisted insemination provided by a health professional approved by the Minister for the purposes of this subsection; or

   (b)assisted insemination provided other than for fee or reward.

   (3)An approval under subsection (2)(a) may be conditional or unconditional.

   (4)The Minister may, by notice in writing given to a health professional approved under subsection (2)(a), vary or cancel the approval on any grounds the Minister thinks fit.

   (5)A health professional who is approved under subsection (2)(a) and who contravenes or fails to comply with a condition of the approval is guilty of an offence.

   Maximum penalty: $120 000.

   (6)In this section—

   health professional means—

   (a)a medical practitioner; or

   (b)any other person who belongs to a profession, or who has an occupation, declared by the regulations to be a profession or occupation within the ambit of this definition.

   [Emphasis added.]

8. To be eligible for registration under Part 2, an applicant must satisfy the Minister that he or she is a fit and proper person to be registered. The applicant must further satisfy the requirements of the Regulations, including licensing, accreditation or other qualifications. Section 6 of the Act provides:

   Eligibility for registration

   A person is eligible for registration under this Part if the person, on application to the Minister, satisfies the Minister that he or she—

   (a)is a fit and proper person to be registered; and

   (b)holds any licence, accreditation or other qualification required by the regulations for the purposes of registration; and

   (c)satisfies any other requirements prescribed by the regulations.

9. Pursuant to regulations 5 and 6 of the Assisted Reproductive Treatment Regulations, for a person to be eligible for registration they must hold a current licence to provide assisted reproductive treatment which has been issued by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia. Applications for registration are made in accordance with section 7 of the Act. A register of persons authorised to provide assisted reproductive treatment is to be kept by the Minister in accordance with section 8 of the Act.

10. Section 9(1) of the Act provides that the Minister is obliged to impose, in writing, certain conditions on a person’s registration.  These conditions include a requirement that the person hold, while the person is registered under the Part, a specified licence, accreditation or other qualification that is in force.  They also include a condition setting out the kinds of assisted reproductive treatment the person may provide and any requirements that must be complied with in the provision of such treatment. 

11. Further, the Minister is obliged to impose a condition on registration which identifies exhaustively the circumstances in which assisted reproductive treatment may be provided. Section 9(1)(c) requires that a condition be imposed on a person’s registration which prevents the provision of assisted reproductive treatment except in limited circumstances:

    (1)    The Minister must, by notice in writing given to a person registered under this Part, impose conditions of the following kinds on the person's registration:

    …

    (c)a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

    (i)if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;

    (ii)if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;

    (iii)if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;

    (iv)if—

    (A)    the donor of the relevant human semen has died; and

    (B)    before the donor died—

    ·    the donor's semen was collected; or

    ·    a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or

    ·    an embryo had been created as a consequence of such assisted reproductive treatment; and

    (C)    before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and

    (D)    if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and

    (E)    the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis;

    (iva)for the purposes of a recognised surrogacy agreement;

    (v)in any other circumstances prescribed by the regulations;

    …

12. Regulation 8(2) of the Assisted Reproductive Treatment Regulations sets out a further mandatory condition upon registration, namely:

    For the purposes of section 9(1)(e) of the Act, the Minister must impose the following conditions on the registration of a person:

    (a)a condition requiring the person to comply with the NHMRC guidelines;

    (b)a condition requiring the person to provide specified information to the Minister from time to time in a manner and form determined by the Minister.

13. Regulation 8(3) provides that in the event of an inconsistency between a provision of the guidelines and a condition imposed on the registration of a person, the provision of the guidelines is, to the extent of the inconsistency, void and of no effect.

14. Section 9(2) provides that the Minister may, by notice in writing given to a person registered under Part 2, vary the conditions of the person’s registration by the addition, substitution or deletion of one or more conditions. Finally, section 9(3) provides that a person who is registered under Part 2 and who contravenes or fails to comply with a condition of their registration is guilty of an offence, the maximum penalty being $120,000.00.

15. The guidelines referred to in regulation 8 above are promulgated by the Australian Government National Health and Medical Research Council.  These guidelines are relevantly titled the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007.  Clause 6.15 of the guidelines deals with posthumous use of gametes and applies directly to the use of gametes taken from deceased or dying persons.  The clause provides that clinics must not facilitate the use of gametes to achieve pregnancy in such circumstances, unless an exhaustive list of conditions is met.  Those conditions include that the deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes. 

16. Part 7 of the Transplantation and Anatomy Act 1983 (SA) prohibits trading in tissue. By section 35 of the Transplantation and Anatomy Act, any contract for sale of tissue is void.

    Interstate Legislation

17. It is convenient to say something broadly about the interstate position on the use of gametes of deceased persons. 

18. There was no evidence before the Court on the matter, but it is apparent from submissions that the applicant would consider as an option taking the sperm interstate for the purposes of assisted reproductive treatment. 

19. The Attorney-General did not submit that the interstate law has any direct bearing on the declaratory relief sought in the within proceedings, but noted that the interstate position is an issue which this Court may take into account in considering the utility of the declaration sought. 

20. The Court has been assisted by the Attorney-General’s summary of the interstate position. Legislation in New South Wales and Victoria prohibits the use of a deceased person’s gametes in assisted reproductive treatment unless there is written consent from the donor to that effect. Section 23 of the Assisted Reproductive Technology Act 2007 (NSW) prohibits an assisted reproductive treatment provider from using a gamete, defined to include human sperm, after the death of the gamete provider unless “the gamete provider has consented to the use of the gamete after his or her death”. Consent is defined to mean consent in accordance with section 17 of the Act, which requires consent to be given by written notice.

21. Section 46 of the Assisted Reproductive Treatment Act 2008 (Vic) provides that a registered assisted reproductive treatment provider may use gametes after a donor’s death only if “the deceased person provided written consent for the deceased person’s gametes … to be used in a treatment procedure.”

22. Western Australia has banned the use of gametes of a deceased person.  Direction 8.9 made on 30 November 2004 in the Government Gazette relevantly provides:[5]

    No posthumous use of gametes: Any person to whom the licence applies must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider. 

    Pursuant to section 3(8) of the Human Reproductive Technology Act 1991 (WA), all directions published in the Government Gazette are taken to be subsidiary legislation. Pursuant to section 6(1) of the Act, assisted reproductive treatment is only permitted when carried out pursuant to a licence, issued under the Human Reproductive Technology Act, to conduct such treatment. 

    [5]    Western Australia, Government Gazette, WA, No 201, 30 November 2004, 5435.

23. In the remaining States and Territories there is no specific legislation.  In these jurisdictions, regard apparently is had to the earlier referred to guidelines of the National Health and Medical Research Council.  The guidelines are not, in themselves, legally binding. 

24. 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

25. 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”.

1. 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. 

2. 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”. 

3. 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. 

4. 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. 

5. 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. 

6. The applicant’s diary entries from September and October 2010 recorded the start and finish of her period, her weight and the days she predicted ovulation.  The applicant also recorded similar information in a notebook. 

7. On 5 October 2010, the applicant was offered a permanent full time position as a school teacher.  Until that time she had been employed as a teacher on a contract basis.  As a consequence of the offer of full time employment, the couple decided again to delay the start of their family.  It was the plan that after about six months of full time employment, they would again start family planning.

8. At the time of the deceased’s death in March 2011, the applicant had resumed taking vitamin supplements and the couple had decided to recommence attempting a family in May 2011. 

9. In August 2010, the deceased undertook further internet searches about tax benefits, child care rebates and baby bonus payments.  The printed documents resulting from this search are also before the Court and contain handwritten calculations about the benefits. 

10. Over the course of their relationship, the couple accumulated and purchased baby clothes, now stored in a room in their home called the “kids room”. 

11. The applicant appears to have given much thought to the realities of being a single parent and to the process of in vitro fertilisation.[8]  The applicant has very supportive parents who apparently have indicated a desire to be actively involved in the raising of any child by the applicant.  The deceased’s parents are apparently of the same mind.

    [8]    She is financially secure and has good ongoing and flexible employment prospects.  She has the support of family and friends.

12. The applicant owns her home, has a substantial sum in the bank, has other assets and is debt free.  She received a death benefit pursuant to the deceased’s superannuation policy.  She has a strong network of family and friends who are supportive of the within application.  The deceased’s parents are said to be supportive of the application.

13. Kelton Tremellen, the Medical Director of Repromed, a specialist fertility service, is a certified specialist in reproductive endocrinology and infertility and a consultant gynaecologist.  Associate Professor Tremellen, following the orders made in March 2011 for the removal of sperm and tissue from the body of the deceased, performed an open testicular biopsy, extracting sperm from both testicles.  The tissue recovered was placed in a culture media and transferred to the Repromed site in suburban Adelaide.  Associate Professor Tremellen reported that the sample was then processed in the laboratory and that 20 straws of frozen sperm were cryopreserved.  Associate Professor Tremellen reported that, in general, a straw of frozen sperm has sufficient sperm to undertake one cycle of in vitro fertilisation, but that “because of the long duration between [the deceased’s] death and the time when [he] extracted sperm the quality of [the deceased’s] sperm will be reduced and [Repromed] may need more than one straw per [in vitro fertilisation] cycle.”  One straw of sperm was thawed to ascertain whether any of the harvested sperm was healthy enough to survive the stress of being frozen and subsequently thawed.  Some alive sperm was seen in the thawed straw, suggesting there is a chance of pregnancy. 

14. In assessing the viability of the sperm in relation to the health of any resulting child, Associate Professor Tremellen observed in his report the following:

    … It is likely however that this sperm has undergone some degeneration during the prolonged post-mortem period and may contain DNA damage.  This would result in a reduction in embryo quality during [in vitro fertilisation] and an increase in miscarriage risk.  However there is no clear data suggesting that sperm DNA fragmentation/damage can alter the health of a resulting child.

    Associate Professor Tremellen continued:

    You enquire whether there is any increased risk to the child from [in vitro fertilisation] technology compared to natural conception.  Generally speaking children born from [in vitro fertilisation] treatment have a slightly higher risk of congenital abnormality than naturally conceived children.  This increased risk however is also seen in couples who conceive naturally but take a long time to do so.  Therefore, it is the interpretation of the literature that the increase in risk of congenital abnormalities in children born of [in vitro fertilisation] more relates to some underlying disorder in the parents rather than the [in vitro fertilisation] procedure itself.  At any rate the increase in risk is relatively minor with the additional risk being only approximately one additional child with a malformation per 100 children born from [in vitro fertilisation] technology compared to natural conception.  If the sperm contains high degrees of DNA damage that certainly has been linked to an increase in miscarriage but its ability to increase the risk of congenital abnormality is not certain.  There is some data to suggest that men who are older and therefore have high degrees of DNA damage in their sperm do increase the risk to their children having abnormalities such as dwarfism or even schizophrenia.  However, these are fairly preliminary findings and the absolute risk is relatively small.

    In providing his opinion on whether it is advisable for the applicant to proceed with in vitro fertilisation using the sperm from the deceased, Associate Professor Tremellen observed:

    The second consideration that I would make regarding treatment is what is in the best interest of the child.  Firstly would treatment using sperm that is potentially damaged from a DNA perspective cause any impediment to the child’s health.  As I have outlined earlier in the letter there is really only strong evidence linking sperm DNA damage with a reduction in embryo quality and an increase in miscarriage rate, not a [sic] increase in childhood abnormalities.  Therefore I am happy that there is no major physical risk to the child from using the frozen sperm in storage.  The second aspect of the best interest of the child is obviously the child being born without a father and knowing that they were conceived from sperm obtained from their father post-mortem.  Obviously this is a very unusual situation and is hard to predict how any individual child would respond to this situation.  However, I believe that if a child was made aware of this fact at a relatively early age and they grew up knowing this information it is unlikely to have any major negative effect on their psyche.  While it is ideal for any child to have a father I have already outlined we already embark on treatment of single women where we know there will be no father figure present.  I understand [the applicant] has a supportive family and there may well be other male “father figures” available to help bring up this child.  Furthermore it is quite possible that [the applicant] will remarry down the track and there may be an available father figure if that were to occur.  While this is all conjecture as I can’t be certain that any of this will occur, I certainly don’t think that any major harm would come from a child being born to this world to a loving caring mother.  The fact that [the applicant] is willing to undergo considerable hardship to access her dead husband’s sperm signifies to me that she is serious about becoming a parent and is likely to be a very attentive mother.

15. The applicant’s general medical practitioner, James Ilic, has confirmed that prior to the deceased’s death, the applicant and the deceased were attempting to start a family.  Dr Ilic has reported that “[i]t was clear to me having known both [the applicant] and [the deceased] that it was their wish and intention for [the applicant] to conceive shortly prior to [the death of the deceased].”

16. 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

17. 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.

18. The applicant has adopted a responsible attitude to the within application.  She is a determined and courageous woman.

19. 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.

20. 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.

21. Historically, at common law, property rights in a human body have not been recognised.[11]  However, over time this general rule has been modified.  In Doodeward v Spence Griffith CJ, with Barton J agreeing, made the following pertinent remarks:[12]

    It is idle to contend in these days that the possession of a mummy, or of a prepared skeleton, or of a skull, or other parts of a human body, is necessarily unlawful; if it is, the many valuable collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies, were formed and are maintained in violation of the law.

    In my opinion there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction. If the requirements of public health or public decency are infringed, quite different considerations arise.

    To apply these principles to the present case. Neither public health nor public decency is endangered by the mere preservation of a perhaps unique specimen of malformation. Public decency may, perhaps, be offended by the public exhibition of such an object. But the fact that an object may not be publicly exhibited affords no criterion for determining the lawfulness of the possession of that object. In my opinion it is not contra bonos mores to retain such a specimen unburied. If one medical or scientific student may lawfully possess it, he may transfer the possession to another. Nor can the right of possession be limited to students. The manner of use may be controlled, but the possession is not of itself unlawful.

    If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.

    [Emphasis added.]

    [11] See for example, Williams v Williams [1882] 20 Ch D 659, 662-663.

    [12] Doodeward v Spence [1908] 6 CLR 406, 413-414.

22. A number of interstate and international authorities are relevant to determining whether the deceased’s sperm is the subject of property rights.  Many of those decisions apply the exception to the general rule established in Doodeward v Spence.[13]

    [13] Doodeward v Spence [1908] 6 CLR 406.

23. In Roche v Douglas,[14] Sanderson M decided that there was property in human tissue samples which had been extracted for the purpose of DNA testing.  Sandseron M observed:[15]

    Having given careful consideration to all of the cases I have mentioned and to the many learned articles on the subject, I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this case it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff's claim. There will be a considerable saving in time and cost, so on the particular facts of this case there is a compelling reason for holding the tissue samples to be property.

    In the wider sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.

    This decision was followed by Simmonds J in S v Minister for Health (WA).[16]

    [14] Roche v Douglas (2000) 22 WAR 331.

    [15] Roche v Douglas (2000) 22 WAR 331, [23]-[24].

    [16] S v Minister for Health (WA) [2008] WASC 262, [9]-[10].

1. In Pecar v National Australia Trustees Ltd, Bryson J had to determine whether tissue samples or other parts of a deceased person were property.[17]  His Honour made the following pertinent remarks:[18]

   R8 refers to "any property" and is extended by subr(4) thus: "In this rule 'property' includes any land and any document or other chattel whether in the ownership, possession, custody or power of a party or not." It is for consideration whether tissue samples or other parts of a dead human body are property. Except in unusual circumstances, rights of ownership do not exist in them; see Doodeward v Spence (1908) 6 CLR 406; where at 414 Griffith CJ expressed the view that a right to retain possession exists "... when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial ...". This view would justify a right to retain possession of autopsy specimens, especially in this case where the human tissue is fixed in and an accretion to a paraffin block which itself is susceptible of ownership. In my opinion the pathology specimen is property within the general meaning of that term which connotes that property has an owner.

   In my opinion however the word "property" in r8 as extended by subr(4) is not used so as to require that there be any right of ownership. The rule does not deal with rights of ownership but with adduction of evidence, and it was not significant for the purposes of the rule whether or not there was a right of ownership. In my opinion the autopsy samples are property within the meaning of r8.

   The power in r8 is discretionary but I approach it with a general disposition favourable to attaining procedural justice by employing the powers of the court to enable litigants to bring forward relevant evidence even if they do not have a legal right to control the disposition of that evidence. This is the ordinary approach to applications for subpoenas which are issued as of course, both for the production of documents and for the attendance of persons. Where there appear to be reasonable grounds for expecting that relevant evidentiary material may be obtained, powers such as these should be exercised; subject however to fair terms to deal with the expense or inconvenience imposed on persons who are not parties.

   [17] Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996).

   [18] Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996).

2. 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].

3. 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].

4. A decision which is particularly relevant to the present proceeding is Jocelyn Edwards; Re the Estate of the Late Mark Edwards.[24]  In that decision, Hulme J of the Supreme Court of New South Wales was required to consider whether to make a declaration that the administrator of the deceased’s estate, who was the deceased’s wife, was entitled to possession of sperm that was extracted from the deceased’s body after his death.  His Honour commenced his reasons with the following question:[25]

   What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?

   [24] Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478.

   [25] Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478, [1].

5. Hulme J’s reasons provide a comprehensive discussion of relevant authorities, including the decisions which I have referred to above.  When applying the principles established in those decisions, Hulme J relevantly observed:[26]

   Applying Griffiths CJ's test in Doodeward v Spence to the facts of the present case, the removal of the sperm was lawfully carried out pursuant to the orders made by Simpson J. Work and skill was applied to it in that it has been preserved and stored. Accordingly, on this long standing and binding authority the sperm removed from the late Mr Edwards is capable of being property.

   I do not find the Queensland decisions, apart from Bazley v Wesley Monash IVF Pty Ltd, of any real assistance. It is significant that each was concerned with an application for removal of sperm from a deceased man, whereas the proceedings at hand involve a factual matrix that is beyond that issue.

   Bazley v Wesley Monash IVF Pty Ltd and the cases from other jurisdictions provide support for the conclusion of property. Although they are not binding, they are, collectively, persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment. Yearworth shows a preparedness of the England and Wales Court of Appeal to extend the law considerably beyond Doodeward v Spence. However, the conclusion of property in the present case can be made under the High Court's long-standing authority without any need for further exploration of the limits of the law.

   Sanderson M in Roche v Douglas saw a distinction between the case before him, involving tissues removed from a body, and authorities that were concerned with whether a deceased body can be property. There may well be an importance in some circumstances of recognising such a distinction. However, the authorities to which I have referred demonstrate a repeated application of Doodeward v Spence to the property status of body parts or tissues removed from a body. For the purpose of the case at hand I do not see that any distinction is significant.

   Hulme J then considered a number of discretionary matters, before deciding to make the declaration sought. 

   [26] Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478, [82]-[85].

6. The common law position on the topic of whether body parts are capable of constituting property was discussed in a report published in 2003 by the Australian Law Reform Commission.[27]  The report entitled “Essentially Yours: The Protection of Human Genetic Information in Australia” relevantly provides:[28] 

   Over the last century, the common law has shifted away from the original rule towards recognising limited ownership interests in one specific area—preserved samples of tissue held, generally, in hospitals and clinical laboratories, and laboratory samples that have been commercially developed, such as cell lines. The shift away from the rule against property in corpses began when the High Court of Australia held that it was possible for a person to acquire property rights over a corpse.[29] Although the decision was not unanimous on this point, Griffith CJ took the view that the rule against property existed, but that it was subject to an exception. His Honour held that it was possible for human bodies and parts to become the subject of property rights where work or skill have been exercised to preserve them.[30] This rule has been followed in subsequent cases, including the English case of R v Kelly,[31] which held that preserved body parts taken from the Royal College of Surgeons were the property of the Royal College and that the unauthorised removal was theft.[32]

   Under existing law, two elements are required for a sample to become property under this rule. First, the organisation or person using the tissue must have lawful authority to do so, such as a hospital has in relation to tissue taken for therapeutic purposes. Second, that organisation must apply some work or skill to the preservation of the sample. If both requirements are satisfied, the sample may be treated as property of the organisation.[33]

   [27] Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report 96 (2003).

   [28] Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report 96 (2003) [20.13]-[20.14].

   [29] Doodeward v Spence (1908) 6 CLR 406. The case concerned an action for the return of a two-headed foetus preserved in a jar of alcohol.

   [30] Ibid, 414 (Griffith CJ).

   [31] R v Kelly [1998] 3 All ER 741.

   [32] Compare Dobson v North Tyneside Health Authority [1996] 4 All ER 474. This decision has been criticised and was not followed in later cases. See D Brahams, ‘Body Parts as Property’ (1998) 66(2) Medico-Legal Journal 45.

   [33] Doodeward v Spence (1908) 6 CLR 406, 414. This statement was cited with approval in Pecar v National Australia Trustees Ltd (The Estate of Ivan Urlich deceased) (Unreported, Supreme Court of NSW, Bryson J, 27 November 1996), 4; R v Kelly [1998] 3 All ER 741, 749.

7. In the present proceeding, the deceased’s sperm was lawfully extracted by Associate Professor Tremellen of Repromed pursuant to the orders that I made in March 2011.   

8. I turn now to consider whether work or skill has been applied to the sperm.  In his report of 5 October 2011, Associate Professor Tremellen described the extraction and preservation of sperm in the following terms:

   …Following the issuing of a Supreme Court Order authorising me to remove sperm I performed an open testicular biopsy and extracted sperm from both testicles.  I was accompanied by a laboratory staff member from Repromed to assist me in this process … The tissue from the testicular biopsy was placed in culture media and then transferred immediately to the Repromed site at Dulwich.  The sample was then processed in the laboratory and twenty (20) straws (a straw is a cylindrical plastic hollow structure like a drinking straw but of smaller calibre) of frozen sperm were then cryopreserved. …

9. In the binding decision of Doodeward v Spence, the preservation of a two-headed stillborn baby in a bottle was sufficient to satisfy the work or skill requirement.[34]  Further, in In re Organ Retention Group Litigation, Gage J discussed the work or skill requirement in the context of dissection and preservation of body parts.[35] 

   In my judgment the principle that part of a body may acquire the character of property which can be the subject of rights of possession and ownership is now part of our law. In particular, in my opinion, the Kelly case establishes the exception to the rule that there is no property in a corpse where part of the body has been the subject of the application of skill such as dissection or preservation techniques. The evidence in the lead cases shows that to dissect and fix an organ from a child's body requires work and a great deal of skill, the more so in the case of a very small baby such as Rosina Harris. The subsequent production of blocks and slides is also a skilful operation requiring work and expertise of trained scientists.

   [34] See Doodeward v Spence (1908) 6 CLR 406, 414-415.

   [35] In re Organ Retention Group Litigation [2004] EWHC 644 (QB), [148].

10. I am of the view that work or skill has been applied to the deceased’s sperm by the preservation of it performed by Repromed.  Therefore, subject to a matter which I will discuss later, the deceased’s sperm may be treated as property, at least to the extent that there is an entitlement to possession. 

11. The next question which is to be addressed is who has an entitlement to possession – the deceased, Repromed, the applicant or any other person.  A similar issue was addressed by Hulme J in Jocelyn Edwards; Re the Estate of the Late Mark Edwards.[36]  His Honour relevantly observed:[37]

    It was not [the deceased’s] property. The authorities to which Higgins J referred, which were not doubted by the majority, support that proposition. The point of departure between the majority and Higgins J was only as to the recognition of the "lawful exercise of work or skill" exception. Accordingly, upon the authority of Doodeward v Spence, as [the deceased] did not have property in his semen when he was alive, it did not form part of the assets of his estate upon his death.

    A second theoretical possibility was suggested by Mr Kirk and that was that the property lay in the doctors and technicians who lawfully exercised the "work or skill", such as was the case with Dr Donahoe in Doodeward v Spence. However, the better view is that the doctors who removed the sperm and the doctor and technicians who then preserved and stored it did not do so for their own purposes but performed these functions on behalf of [the applicant]. In effect, they were acting as her agents and so did not acquire any proprietary rights for their own sake.

    It remains to be considered whether [the applicant] herself has any entitlement. Senior counsel put her asserted entitlement to possession, not upon the basis that the semen was part of the assets of the estate, but that as "incidental to her duty as Administrator in relation to the disposal of the deceased's body, a right to possession of any part thereof". But again, the authorities endorsed by the High Court in Doodeward v Spence do not support a proposition that [the applicant’s] "duty" gave her any entitlement to do as she wished other than, to use the words of Higgins J, "to give the corpse decent internment". (The words reflect the terminology of the times but the effect is clear).

    There is available, however, the alternative of recognising a right that extends beyond that which she would have as administrator. The only relevance that there is in [the applicant] being the administrator of the estate is that the views of such a person would be a relevant matter to consider in determining how the discretion should be exercised as to making the declaration sought. Obviously, the administrator in this case is in favour.

    Subject to a consideration of various discretionary aspects to which I am next to turn, in my view [the applicant] is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that [the applicant] is entitled to possession of the sperm.

    [36] Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478.

    [37] Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478, [87]-[91].

12. In my view, for the reasons identified by Hulme J, this is not a case where the sperm was the property of the deceased.  The Repromed staff who exercised work and skill did so not for their own purposes, but performed these functions as a consequence of the orders of the Court.  They were acting as agents and did not acquire any entitlement to the sperm in their own right.  I also do not accept that the sperm formed part of the assets of the deceased’s estate.  In substance, I agree with Hulme J that the applicant is the only person in whom an entitlement to the sperm could lie.  The sperm was removed on her application.  In my view, the applicant has a prima facie entitlement to possession of the sperm but, for the reasons that follow, that entitlement is subject to such conditions that the Court may impose in its inherent jurisdiction. 

13. There are important aspects to the present proceeding that call for emphasis.  The deceased did not consent to the extraction or use of his sperm.  His sperm has the capacity to create the life of a child.  The interests of the intended child are, in these circumstances, paramount.  The interests of the child may be affected in a number of ways.  For example, there may be some inherent deficits in the sperm because of the circumstances of its removal.  In any event, it is possible that there may be problems of a genetic nature in the sperm.  Problems might arise during pregnancy and following birth.  It is to be borne in mind that on the applicant’s case, the child will be raised in a single parent home. 

14. It is against the background of these factors that I consider the Court’s inherent jurisdiction continues to operate.  The sperm was extracted from the body of the deceased by order of the Court.  The Court exercised its jurisdiction to authorise the preservation of the sperm and it appears that its authorisation has now been sought for the creation of life.  It is these circumstances that compel the conclusion that the Court, in its inherent jurisdiction, retains control of the use of the sperm.  It is in this way that the paramount interests of the child can be properly addressed and protected. 

1. For the above reasons, I consider that, as noted above, 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 to be approved by the Court. However, there is an issue to be resolved before an order for a release is made.

2. The issue to be addressed concerns the matters raised by the Attorney-General.  The applicant has not provided evidence to demonstrate the following relevant conditions which are, inter alia, set out in section 9(1)(c) of the Assisted Reproductive Treatment Act: that the applicant is, or appears to be, infertile;[38] that before the deceased died, his semen was collected[39] – in fact, it is clear that his semen was collected after his death; and that before the deceased died, he consented to the use of his semen after his death in the provision of the proposed assisted reproductive treatment process.[40]

   [38] Assisted Reproductive Treatment Act 1988 (SA) section 9(1)(c)(i).

   [39] Assisted Reproductive Treatment Act 1988 (SA) section 9(1)(c)(iv)(B).

   [40] Assisted Reproductive Treatment Act 1988 (SA) section 9(1)(c)(iv)(C).

3. Consequently, as submitted by the Attorney-General, it appears that any registered person providing assisted reproductive treatment to the applicant may well contravene the guidelines and may breach the conditions of their registration.

4. It is to be noted that pursuant to section 10(1) of the Act, a registered person who breaches a condition of their registration is liable to suspension or cancellation of their registration.  As earlier mentioned, it is an offence for a registered person to breach a condition of their registration.[41] However, it is open to the Minister to vary in writing, pursuant to section 9(2), the conditions of a registered person, which presently prevent the tissue being lawfully used in any assisted reproductive treatment procedure.[42]

   [41] Assisted Reproductive Treatment Act 1988 (SA) section 9(3).

   [42] Section 9(2) of the Assisted Reproductive Treatment Act 1988 (SA) provides:

   The Minister may, by notice in writing given to a person registered under this Part, vary the conditions of the person's registration by the addition, substitution or deletion of 1 or more conditions.

5. The Attorney-General submitted that while not directly relevant to the question before the Court, the operation of the Assisted Reproductive Treatment Act is a matter which may be taken into account in exercising the Court’s broad discretion to make a declaratory order.  Presently, no registered person operating in South Australia would be able to lawfully provide in vitro fertilisation treatment using the deceased’s sperm to the applicant.  This, it was contended, is a relevant consideration for the Court of the within application for an order for possession of the sperm. 

6. Before any order for release is made, the Attorney-General’s consent should be sought to the in vitro fertilisation of the applicant, that is, an appropriate exemption under the legislation should be sought.  I understand from submissions made that an application for an exemption to the Attorney-General has been drafted.  I anticipate these reasons may accompany that draft.

   Conclusion

7. For the above reasons I consider that the applicant has made out a prima facie case for the release of the deceased’s sperm to her for the purpose of in vitro fertilisation.  Before making any declaration and consequential orders, the approach to the Attorney-General should be addressed.  Once that has occurred, I will further consider the application.