Tuesday, May 24, 2011

Right to possession of posthumously-extracted sperm

In the recent decision of Edwards: Re the Estate of the late Mark Edwards [2011] NSWSC 478, Justice Hulme in the Supreme Court of NSW considered the question of whether a woman had the right to possession of a sperm sample taken from her husband shortly after his death.

Ms Edwards married Mr Edwards in November 2005 and they began planning a family together.  They apparently had some difficulties in conceiving, for which they sought treatment.  On Valentine’s Day in 2009 Mr Edwards, being concerned that he might have a terminal illness, said to his wife: “If something happens to me I would want a part of me to be here with you … If we find out I have cancer I want to make sure we have our baby before I am unable to have one, before I do any chemo.  Please promise me you will still have our baby.”

Tragically, although Mr Edwards was cleared of cancer, he was killed in a workplace accident in August 2010, the day before they were due to attend an appointment at an IVF clinic to discuss their treatment options.  Mr Edwards obtained an order from Simpson J in the Supreme Court of NSW enabling the extraction of sperm from Mr Edwards’ body to be preserved pending further order.

Ms Edwards initially sought orders to the effect that the sperm being held in storage be released to Ms Edwards and that she be permitted to use it for the purposes of the provision to her of assisted reproductive technology (“ART”).  The orders sought in that form could not be made, because section 19 of the Assisted Reproductive Technology Act 2007 prohibited an ART facility from providing treatment using human sperm without satisfying the consent requirements of section 17, which effectively required a written notice from the sperm provider.  Mr Edwards had not, prior to his death, provided such a written notice.

Eventually, therefore, Ms Edwards in the alternative sought orders to the effect that she, as the administrator of her husband’s estate, was entitled to possession of the sperm.

The leading authority in Australia on the question of whether there is property in, or a right to possession of, a human body or part thereof is the decision of the High Court in Doodeward v Spence (1908) 6 CLR 406.  This concerned the body of a “two-headed baby” that had been still-born in 1868.  The attending doctor had taken the body away and preserved it in spirits and kept it in his surgery as a curiosity.  When the doctor died in 1870 the preserved baby was sold as part of his personal effects, and eventually it came into possession of Doodeward, who exhibited it for commercial gain.  Spence, a police officer, seized the bottle and its contents, and Doodeward brought an action for repossession of it.  By majority (Griffiths CJ and Barton J) the High Court held that he was entitled to an order for the recovery of the bottle and the body.

Higgins J in dissent analysed the authorities which stood for the proposition that there could be no property in a corpse “except in favour of persons who wanted it for the purposes of burial, and who by virtue of their close relationship with the deceased might be regarded as under a duty to give the corpse decent interment.”

Griffiths CJ, however, did not consider those authorities of assistance, and preferred to analyse the issue from general principles of law.  He held (at 414):

“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 possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, or course, to any positive law which forbids its retention under the particular circumstances.”

Barton J agreed entirely with the reasons of Griffiths CJ, although it seems clear that Barton J has been heavily influenced by the fact that as a “freak of nature” that had been preserved and exhibited as a curiosity, the body had long ceased to be a “corpse awaiting burial”, if it had ever answered that description.  While there has been some academic debate about the extent to which Barton J in fact agreed with Griffiths CJ, nonetheless Hulme J treated Griffiths CJ's "work and skill" test as constituting a majority opinion.

Justice Hulme surveyed a large number of subsequent decisions both in Australia and overseas that had considered the question of whether there could be property in a body or body parts.  Apart from noting, however, that they indicated a flexibility in the application of the law to meet new situations exposed by the advancement of medical technology, his Honour set about applying the law binging upon him in the High Court’s decision in Doodeward.

At [82] Hulme J applied Griffith CJ’s “work and skill” test to find that the removal of the sperm had been carried out lawfully pursuant to the previous orders made by Simpson J, that work and skill had been applied to it in that it had been preserved and stored, and that accordingly it was capable of being property.  But whose property?

It could not be Mr Edwards’ property.  The point of departure between the authorities referred to by Higgins J in dissent in Doodeward and the conclusions of the majority was only as to the recognition of the “work and skill” exception.  Mr Edwards had applied no work and skill, he had no property in his semen while he was alive, and it did not form part of the assets of his estate upon his death.

The persons who had applied work and skill were the doctors and technicians who had extracted and preserved the sperm.  However, at [88] Hulme J recognised that did so not for their own purposes but performed these functions on behalf of Ms Edwards, acting as her agents, and therefore did not themselves acquire any property rights.

Curiously, Hulme J does not expressly state that Ms Edwards acquired the property in the sperm by reason of the application of work and skill by the doctors and technicians.  However, that conclusion must be implicit in the finding that she was entitled to possession of the sperm, Hulme J having rejected the proposition that she was so entitled incidentally to her duty as administrator  for the purposes of disposal of the Mr Edwards’ body.  Prima facie, therefore, she was entitled to possession of it.

A further curiosity about this case is the consideration by Hulme J of whether, as a matter of discretion, he should make the orders sought.  This raised the question of what Ms Edwards would do with the sperm, and in particular whether the court should recognise the right to possession if Ms Edwards would then seek to use the sperm unlawfully.

As to the first, there was (perhaps surprisingly) no direct evidence as to what Ms Edwards intended to do with the sperm, although it is apparent from the original orders sought (and Hulme J inferred) that she wanted to use it for the purposes of conception.

As to the second, Ms Edwards could not lawfully use the sperm for ART in NSW.  Nor could she do so in Victoria, South Australia, or Western Australia.  In the other jurisdictions there is no legislation specifically dealing with the issue.  However the NHMRC’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research also require consent, although there is some ambiguity as to whether they require the consent to be in writing.  There was therefore the possibility that Ms Edwards would be able to seek ART in some other state or territory, and public policy considerations, on balance, did not prevent the court from recognising Ms Edwards’ entitlement to seek that treatment in some other jurisdiction where it could lawfully be performed.

In the end result, Hulme J was satisfied that the orders should be made that Ms Edwards was entitled to possession of the sperm recovered from her late husband.

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