Property rights and the body – right to a dead person’s reproductive material

By Legal Eagle

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 [2011] NSWSC 478.

The facts of the case are absolutely tragic. At [7] – [11], 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 [135] – [140], 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 [1908] 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 [2000] QSC 390; [2001] 2 Qd R 35; and
  • Baker v State of Queensland [2003] 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 [2000] WASC 146; (2000) 22 WAR 331 (a case involving a DNA sample);
  • Re Denman [2004] QSC 70; [2004] 2 Qd R 595 (distinguishing Re Gray and Baker mentioned above);
  • S v Minister for Health (WA) [2008] WASC 262;
  • Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1 (an English case involving sperm provided by cancer sufferers); and
  • Bazley v Wesley Monash IVF Pty Ltd [2010] 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 [2005] 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.

16 Comments

  1. MikeM
    Posted May 23, 2011 at 6:47 pm | Permalink

    Without stating a general principle about proprietary rights to living cells, in the specific circumstances of Ms Edwards, her late husband’s intention was clear. There is no legal or social purpose served by the law in frustrating it.

    The oral testimony of Dr Mangat should be considered as sufficient.

  2. Posted May 23, 2011 at 9:16 pm | Permalink

    We generally allow people to specify what should be done with their remains when they die. I don’t see how a loved one using reproductive material to have a child is stretching that too far, whether the evidence is a particular filled out form or otherwise. I do feel a little squeamish about the notion of others owning part or all of the remains to enable them do as they feel fit outside of the original wishing of the deceased. It would feel wrong to me, for example, if Ms Edwards were to sell the sperm to another woman to use when its clear the wishes of her late husband were for her to use it.

  3. Posted May 24, 2011 at 4:56 am | Permalink

    It’s just occurred to me, in light of Doodeward v Spence and some of the equally tasty cases I’ve got coming up in a forthcoming post that non-lawyers who read this blog may be starting to wonder about lawyers…

  4. Posted May 24, 2011 at 1:47 pm | Permalink

    Having read the act, I would have interpreted s 17 as describing what was sufficient for consent, rather than what was required for consent. Then say that the facts on this case are also sufficent for consent for supply as per s 21. Written consent is still explicitly required by s 23(c), hence the result would be the same without playing silly buggers with the word “supply”.

  5. kvd
    Posted May 24, 2011 at 2:56 pm | Permalink

    She has merely obtained a right to possession

    … so, that’s it then – possession really is nine/tenths of the law?

    And anyway, who speaks for the sperm? Did this sperm consent? Maybe there should be a sort of guardianship process, to achieve a resolution via mutually agreed protocols (funded by the Sperm Bank, although, hang on a bit – we might end up with collateralised sperm options, sperm futures, contracts for difference in sperms…) .

    [email protected] is right; think I’ll just sit in the corner humming “Every Sperm Is Sacred” while the lawyers sort it out.

  6. kvd
    Posted May 24, 2011 at 3:34 pm | Permalink

    Which is a round about way of saying however did this ‘matter’ ever come before a judge? Who else could possibly claim any legal right to posession, let alone ‘use’ of those (her husband’s) cells? Never mind what her intended purpose might have been – which itself seems a pretty slippery slope upon which to deny her.

  7. Posted May 25, 2011 at 9:08 am | Permalink

    The reproductive material has the following possible fates – (1) loss of viability in storage; (2) being discarded; (3) non-reproductive use in education, research, or possible profit by biomed companies (4) attempts at reproduction.

    If there is a resulting live birth, the ultimate ownership is split between the child, and the owner of tissues such as the placenta and chorion.

    The child being “self-owned”, the wannabe mother can only be, at most, a temporary guardian, with a fixed time limit.

    If a live child is not the result of reproductive attempts, the post-conception tissue ends up under 1/2/3 above.

    It is known that as more technical procedures are carried out, or there is sperm storage for an extended period, then more epigenetic changes are created – none of them likely to be good, and we are accumulating more and more details of these procedures being harmful, both to the child and even later generations. This raises the possibility of, with manifestly harmful outcomes, there is the possibility of claims for pain and suffering that would not have happened without the decision of the guardian to proceed with conception.

    It is further complicated when there may be a genetic predisposition to severe medical issues in the father, and although not the direct cause of death in this case, would have resulted in lots of pain and suffering in the husband. Note that there /is/ a strong genetic predisposition with ankylosing spondylitis, with males three times more likely to be diagnosed or suffer severely than women – raising in this case a responsibility for aborting a male foetus.

    As all the medical factors become understood over time, there is the rationale for impartial guardianship by an organ of the state increases, some oversight to ensure that probable pain and suffering (and expenditure by the state on large health-care costs).

    Imagine if a painful, fatal disease with simple dominant Mendelian inheritance is involved, a disease that will unavoidably impose significant costs to the state.

    My own feeling is, from a precautionary principle, in the interests of both the hypothetical child and the state (and indeed the species), that reproductive assistance technologies are best avoided except in cases where the technical intervention is minimal, and the reproductive problems are limited to environmentally-caused mechanical obstruction of the fallopian tubes. I’d go so far as to say that there are some situations with genetic predispositions and heavy technical intervention, that intention to cause a live birth should be prohibited, but the conception with the intent to abort (the products of conception to be used for medical research, with or without commercial considerations) should /not/ be prohibited.

    In this particular case, using only existing medical knowledge, I believe it would be desirable to order genetic and epigenetic counselling as part of the transfer of custody of the sperm. If such an order is unavailable to the state, which from considerations above should be considered as a partial guardian of a hypothetical child (disagreeing with [email protected]), then thereshould be regulatory changes to allow this.

    It’s not just a simple dispute over property rights.

  8. kvd
    Posted May 25, 2011 at 12:11 pm | Permalink

    [email protected] as always I respect your obvious knowledge, and where that leads your thinking. But in terms of LE’s (only) two questions, I agree with the judge’s determination at 91

    in my view Ms Edwards 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.

    and, no, I don’t feel squeamish about living cells being subject to proprietory rights. (Here I assume LE actually meant ‘human cells’, but really, why differentiate between human and other living cells? GM crops are a fact if life, for instance.)

    As to the second part of my [email protected] and Dave’s musings on what might happen, I still can’t accept it as a role of the court to waste time on possible future consequences of granting her the right of possession. That is just a little too nanny state for me. At 143 the judge quotes

    O’Keefe J recognised (at [73]) that it was “virtually impossible to talk sensibly” about this factor when a child has not been, and never may be, conceived. He referred to an inability to predict such things as the plaintiff’s future health, her employment and financial situation, and whether she will remarry.

    I accept I’m quoting out of context, but this rings true for me.

  9. Posted May 25, 2011 at 2:04 pm | Permalink

    I have no trouble with this, so am struggling to get excited about it. But then, I think that both adoption and organ markets should be allowed. I’ve clearly read too much Posner:)

    The best way to head Dave’s nanny-statist intrusion off at the pass is to ensure the state doesn’t pay for reproductive technology of this type (I’m completely in agreement with the NHS when it gives couples three rounds of IVF only; the taxpayer is not a bottomless pit of money).

    On a related point, Dave’s comment is quite possibly the best argument against the welfare state you’re ever likely to read: it gives nanny-staters the impression they part own welfare recipients’ lives.

  10. Patrick
    Posted May 25, 2011 at 3:26 pm | Permalink

    I agree with SL.

  11. Posted May 25, 2011 at 4:15 pm | Permalink

    [email protected] – I’m in total agreement with the idea that there should be a limit on state spending on reproductive technology of this type. I’d set that limit at $0. I’d also refuse to fund any part of a hospital engaging in such procedures.

    But… where consequences involve a live birth, and non-lethal condition imposing large costs, pain and suffering, the state can literally be left holding the baby if the parents see the problem, calculate the costs, and put the baby up for adoption (or die in a car crash). Being hard-arsed again, exposure (to the “green needle”) would be my preferred option.

    Yeah – I’m a fan of eugenics – and reproductive assistance is usually required when there problems that shouldn’t be passed on (if we keep doing it, sooner or later ALL babies will need to be conceived in a test tube)- whether genetic or epigenetic. On reproductive issues I’m about as far from a bleeding heart lefty as you can get – BECAUSE I’m a huge fan of the welfare state.

  12. Posted May 25, 2011 at 5:03 pm | Permalink

    (if we keep doing it, sooner or later ALL babies will need to be conceived in a test tube)

    You can say that about most aspects of modern medicine can’t you? Although I do find your view that the gene pool as susceptible to a ‘tragedy of the commons’ quite interesting.

  13. Posted May 25, 2011 at 8:29 pm | Permalink

    [email protected]: I was talking specifically about reproductive difficulties – none of which I’ve heard correlate any positive benefit (unlike things that have both down and upsides – Asperger’s in the population can be useful – hell, even cystic fibrosis increases the population’s resistance to cholera).

    Note that the WHO dropped the reference level for oligospermia from 20 million sperm/ml of semen to 15. Other worries such as poor viability, morphology, motility are also on the increase.

    While it’s sometimes hard to argue for the state to interfere with natural conception, it’s easier to justify the state saying “NO” to prevent unnecessary costs/suffering when there is a test tube required.

    Via “Google is my friend” See http://www.abc.net.au/science/articles/2008/06/13/2274210.htm

    So, in the case LE mentions, we have (1) strong genetic predisposition to suffering in any child – especially male, (2) epigenetic risks from standard IVF and ICSI procedures, (3) epigenetic risks from post-mortem collection.

    Recent work on Assisted Reproductive Technology (ART) epigenetic issues gives a hint at risks yet to be discovered – for one syndrome studied – BWS,

    DeBaun et al. (2003) conducted a prospective analysis of the prevalence of ART in a series of patients with BWS, which was 4.6% (3/65), compared with the population rate of 0.76% in the same period in the United States. Similarly, Maher et al. (2003) identified 6 patients with BWS who were born after ART in a cohort of 149 sporadic BWS births (4%). They compare this finding with a background rate of 0.997% births after ICSI or IVF in the United Kingdom – http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1181938/

    A right to property is one thing, but when you use the property in a way that creates a reasonable chance of pain and suffering in an innocent third party, that’s another.

    At the very least, I think the state should, in this particular case, ensure that the woman received accurate information/counselling about the risks before “handing the sperm over” – and from someone who had no conflict of interest. Such counselling has NO potential to cause harm, and can avoid suffering. That counselling session would be government-funded.

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