RECENT CASE EXCERPT FROM ALJ (APRIL 2012)

Bazley v Wesley Monash IVF Pty Ltd [2011] 2 QD R 207 and Re Edwards (2011) 4 ASTLR 473; [2011] NSWSC 478*

These two cases deal with the problem that occurs when a man considers that he should preserve sperm in case of future health issues, and he then dies. Can his spouse or executor obtain the sperm?

The first difficultly is whether sperm can be considered property. The 1908 decision of the High Court in Doodeward v Spence (1908) 6 CLR 406, a case concerning a two-headed still-born baby that had been preserved, indicated that generally there was no property in a human body. However, there was an exception where there had been work and skill on the body part involved in the litigation.

In the Queensland case, the problem was that the man had not made provision for disposal of the sperm, and under the guidelines presented to him, in such a situation, the sperm was to be destroyed. Application was made to the court for an injunction to prevent the destruction of the sperm.

White J noted that in Yearworth v North Bristol NHS Trust [2010] QB 1, the English Court of Appeal had held that the work in ensuring sperm was preserved came within this exception. However, the English court took a course not available in Australia of saying that the law had moved on since 1908 and that there was no longer any impediment to recognising sperm, being part of a human body, as property.

Her Honour held that the exception noted in Doodeward applied and that there could be property in the sperm. That property vested in the man while alive and after his death, in his executor. She made an order preventing destruction of the sperm for six months, the applicant paying the cost of preservation.

In the NSW case, a man had died in a workplace accident. Simpson J ordered that sperm be extracted from the body. The evidence is that the sperm ceases to be of any use if not extracted within a short time after death. The coroner gave oral consent to the removal. RA Hulme J was later asked to make a declaration that the man’s widow, as administrator of his estate, was entitled to the sperm.

The judge noted that as the sperm was removed posthumously, it was not “his” at the time of his death and thus did not pass to his estate. It was property within the exception to the Doodewood principle. The person with the best right to possession of the property was the widow. The judge made the declaration sought.

There are problems under the Assisted Reproduction Technology Act 2007 (NSW) with use of sperm without consent of the generator of the sperm. The judge held that the whole of the circumstances showed that by his actions before death, including making an appointment to go with his wife to a fertility clinic, the man had impliedly consented to the use of his sperm by his widow.

Mr Justice P W Young AO

* The full citation for this recent case is (2012) 86 ALJ 234 at 236.