It was reported in The Australian today that a women has won the right to possession of her dead husband’s sperm with a view to using the material to conceive a child via IVF. The full judgment is available here: Jocelyn Edwards; Re the estate of the late Mark Edwards  NSWSC 478.
The facts of the case are absolutely tragic. At  – , Hulme J explained:
On Valentine’s Day in 2009, Mr Edwards expressed to his wife a concern that he might have a terminal illness. Ms Edwards said that in telling her of his fears in this regard he also said to her:
“If something happens to me I would want a part of me to be here with you. Our baby will be a part of us – our legacy even after we are both gone. She will be the bond that unites our families. The bond between [their two children]. 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”.
Mr Edwards’ condition was further investigated with a variety of tests until in late 2009 it was determined that he had a condition known as ankylosing spondylitis (a form of chronic inflammation of the spine). His general well-being improved once he commenced appropriate treatment. Ms Edwards deposed, however, that her husband had been told that the condition might have affected his sperm count which had caused difficulties in conceiving a child. Ms Edwards herself was found to be suffering from a gynaecological condition which could have affected her fertility and she underwent surgery for this in early 2010.
From this time on the couple pursued their investigation of obtaining fertility assistance. At her husband’s request, Ms Edwards obtained a referral from her general practitioner to the Westmead Fertility Clinic. The first available appointment was in July and on that occasion they met with Dr Mangat and discussed the tests that were required and the various treatment options available.
Testing was undertaken on 2 and 3 August 2010. On the evening of 4 August, the couple had a discussion about the proposed treatment. Mr Edwards expressed a preference for in vitro fertilisation (IVF) and Ms Edwards agreed. The couple were due to attend a further appointment at the clinic on 6 August 2010 when it was anticipated that they would discuss their preferred treatment option and sign consent forms to commence treatment.
Tragically, at about 12.15pm on 5 August, Mr Edwards was fatally injured in a workplace accident. His body was conveyed to the Royal North Shore Hospital. Ms Edwards attended the hospital to identify the body. Inquiries were made with hospital staff about extraction of sperm to enable Ms Edwards to proceed with the IVF as she and Mr Edwards had planned.
Ms Edwards obtained an order allowing sperm to be taken from Mr Edwards’ body. Mr Edwards’ family was entirely supportive of her legal action and gave evidence to this effect at the trial.
When I first read the media report of the case, I thought that Ms Edwards had obtained a right to use the sperm to conceive a child despite the death of her husband, but the right she has obtained is something less than that. She has merely obtained a right to possession of the sperm, but she cannot use the sperm to conceive a child in New South Wales because she did not receive the relevant consent required by s 23(a) of the Assisted Reproductive Technology Act 2007 (NSW) (‘ART Act‘). Pursuant to s 17 of the ART Act, consent must be provided in writing. Presumably, as Hulme J observed, Ms Edwards will seek to take the sperm to another state which does not so strictly regulate the use of reproductive material from dead people. As Hulme J observed at  – , ss 21 and 22 of the ART Act prohibit ART providers from supplying and exporting gametes and embryos to others except with consent. However, he opined that if Ms Edwards was entitled to possession, then the ART provider required to give her the reproductive material was not “supplying” the material but “releasing” it to her as she had a right to possession. Any export would be undertaken by Ms Edwards herself, not the ART provider.
The question of property rights in bodily material is a very interesting one, which I have discussed some years ago here. Hulme J cites a number of cases from various jurisdictions. With the advent of IVF, the possibility of conceiving a child once the donor of reproductive material is dead becomes a possibility. However, proprietary rights in dead bodies is something which has arisen in many older cases as well.
Hulme J cites the frankly bizarre and somewhat disquieting case of Doodeward v Spence  HCA 45; (1908) 6 CLR 406. In that case, a Dr Donohoe delivered a stillborn baby with two heads, and preserved the baby in a bottle and kept it in his surgery. After Dr Donohoe’s death, it was sold off at auction with other personal effects and realized between £30 and £40. Later, Doodeward came to possess it, whereupon he exhibited the bottle for gain until Spence, a police officer, prosecuted and arrested Doodeward and seized the bottle under warrant. Doodeward demanded the return of what was seized, but Spence merely returned the bottle and the spirits in which the baby was preserved, still retained the corpse at the University museum. Doodeward brought an action in detinue. A majority of the High Court decided that Doodeward could establish a proprietary right in the baby.
He also cites the case of Moore v Regents of the University of California, 793 P 2d 479 (1990) which I mention in the post linked above. In that case, a majority of the Supreme Court of California decided that the plaintiff, Moore, could not establish a proprietary interest in cancerous spleen cells which had been removed by a doctor and then cultured into a very profitable ‘cell line’. However, as Hulme J notes, a subsequent Californian case held that sperm could be devised after death by means of a will: Hecht v Superior Court of Los Angeles County, 20 Cal Rptr 2d 275 (1993). There, a man donated sperm and caused it to be stored. He committed suicide, but bequeathed the sperm in his will to his partner with the intention that she would use it conceive a child. The sperm was held by the Californian Court of Appeals to be something that was capable of disposition by will.
The trend in case law is seems to be tending towards letting people use the reproductive material from dead partners where it would not have been allowed previously. Thus, the following cases held that there was no right to take reproductive material or samples from a dead body:
- Re Gray  QSC 390;  2 Qd R 35; and
- Baker v State of Queensland  QSC 2.
The following cases decided that there was a right to possession in material or samples taken from a dead body:
- Pecar v National Australia Trustees Ltd and Anor , unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996 (a case involving a DNA sample);
- Roche v Douglas  WASC 146; (2000) 22 WAR 331 (a case involving a DNA sample);
- Re Denman  QSC 70;  2 Qd R 595 (distinguishing Re Gray and Baker mentioned above);
- S v Minister for Health (WA)  WASC 262;
- Yearworth and others v North Bristol NHS Trust  EWCA Civ 37;  QB 1 (an English case involving sperm provided by cancer sufferers); and
- Bazley v Wesley Monash IVF Pty Ltd  QSC 118.
I think it was important to the judge’s decision that the trend of authorities was increasingly ready to recognise a proprietary right in reproductive material, and that the English Court of Appeal had recently done so in Yearworth.
In any case, Ms Edwards will now have the sperm released to her. I presume, as with the woman in the series of Victorian cases dealing with this issue (AB v Attorney-General for the State of Victoria (2005) 12 VR 485 and YZ v Infertility Treatment Authority  VCAT 2655) Ms Edwards will go to a State such as the ACT which does not have as strict consent requirements for the use of reproductive material after death, or perhaps overseas.
What do you think? Do you think that someone should have a proprietary interest in the reproductive material of their dead partner? It is difficult not to feel sympathy for a woman such as Ms Edwards, particularly as she and her husband were about to sign the consent forms for IVF the day after her husband’s untimely death. Or do you feel squeamish about living cells being subject to proprietary rights? For my part, I would award limited proprietary rights in human tissue in some exceptional circumstances, but I would be very careful in doing so.