Ross v Attorney-General for Queensland

[2008] QSC 325

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE SJA

KJR	Applicant
and
ATTORNEY-GENERAL	Respondent

BRISBANE

..DATE 02/12/2008

ORDER

HIS HONOUR: The de facto partner of the applicant died in tragic circumstances yesterday.

This is an application seeking permission for a specialist medical practitioner to extract spermatozoa and blood from his body. The object of extracting the spermatozoa is to permit its storage until an application can be brought seeking access to the material for in vitro fertilisation of the applicant.

The blood is needed to ensure that the spermatozoa does not pose a risk to other samples from other donors where the spermatozoa of the deceased would be stored.

It is unnecessary for the purposes of this application to do other than record that (i) it is unlikely that the extractions will be conducted in circumstances which might involve a contravention of s. 236 of the Criminal Code; (ii) a serious question to be tried arises in relation to the power to grant the relief ultimately to be sought: namely, access to and use of the spermatozoa.

The circumstances are urgent. The deceased’s sperm is unlikely to be vital within at most a few hours.

There are conflicting decisions in this State on whether such a course is permissible.

In Re Denman [2004] 2 Qd R 595, Atkinson J permitted such an extraction on an interim basis, pending an application to use the sperm.

Similar orders have been made in Victoria: see AB v Attorney-General for the State of Victoria [2005] VSC 180, at [138] - [140].

Here, an order for interim preservation ought to be made to permit mature reflection by the applicant and, if an application for use for fertilisation is made, to ensure that the application would not be rendered futile through loss of vitality in the sperm if it should be held that there is power to grant such relief and, if so, that it would be just to do so.

I wish to express my appreciation to Mr Parrott from the Office of Crown Law for attending so promptly once belated notice was given.

Understandably in the rushed circumstances, and given the Attorney-General's other commitments, it was not possible for him to do more than assist me in the consideration of the terms of the draft order.

HIS HONOUR: Order as per draft.

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CaseChat Overview and Summary

In the Supreme Court of Queensland, the applicant, Ross, sought permission for a specialist medical practitioner to extract spermatozoa and blood from the body of her deceased de facto partner. The application arose due to the tragic death of the deceased, and the applicant intended to use the extracted spermatozoa for in vitro fertilisation. The blood extraction aimed to ensure that the spermatozoa did not pose a risk to other samples from other donors where the deceased's spermatozoa would be stored. The circumstances were urgent, as the deceased's sperm was unlikely to remain viable for more than a few hours.

The primary legal issues in this case were whether the court had the power to grant permission for the extraction of spermatozoa and blood from the deceased's body and if so, whether it would be just to do so. There were conflicting decisions in Queensland and Victoria on whether such a course was permissible. The applicant argued that an order for interim preservation should be made to permit mature reflection and to ensure that the application would not be rendered futile through loss of vitality in the sperm.

The court considered the conflicting decisions in this state and Victoria and determined that an order for interim preservation ought to be made to permit mature reflection by the applicant. If an application for use for fertilisation was made, it would ensure that the application would not be rendered futile through loss of vitality in the sperm if it should be held that there is power to grant such relief and, if so, that it would be just to do so. The court also expressed its appreciation to Mr Parrott from the Office of Crown Law for attending promptly once belated notice was given.

The court made an order as per the draft, granting permission for the extraction of spermatozoa and blood from the deceased's body, subject to the conditions outlined in the draft order. The court acknowledged the urgency of the situation and the need for mature reflection by the applicant. The court also recognised the importance of preserving the deceased's sperm for potential use in fertilisation and ensuring that the extraction did not pose a risk to other samples from other donors.

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