On 21 April 2010, White J ordered that provided a widow pay the
costs associated with storage, an IVF clinic in Brisbane was
required to store the gametes (sperm) of her late husband.
The Supreme Court has a relatively consistent history of
allowing parties (usually widows) to harvest and store in cryogenic
conditions the sperm of deceased men. In 2004, Atkinson J gave a
similar order in Denman  2 Qd R 595. Byrne SJA made
a similar decision in an unreported case of Ross v. A-G of
Queensland (unreported – 3 December 2008)
However, the Court has never ordered that such harvested sperm
be utilised for any purpose – be it by insemination, for
paternity testing or anything else. In cases that reach back to the
High Court decision of Doodeward v. Spence (1908) 6 CLR
406 and, more recently, Chesterman J's decision in Re:
Gray  2 Qd R 35, the Courts have consistently held that,
at common law at least, there is "no property in a deceased
body" and, given that no proprietary interests exist, there
are no rights which attach. Further, given that it is potentially a
crime in Queensland to interfere with a corpse – see
section 236 of the Criminal Code – the Courts have been
unwilling to allow the use of sperm absent legislation to the
Consequently, it is critical to understand the distinction. The
Court will invariably make an order for the harvest and storage of
sperm, but will not (as yet) make any order for its subsequent
Importantly, White J's decision reverses the understood
common law and takes the matter a step forward. Although her Honour
was not asked to make any order concerning the use of the subject
sperm, her Honour held that:
"[t]he conclusion, both in
law and in common sense, must be that the straws of semen currently
stored with the respondent are property, the ownership of which
vested in the deceased while alive and in his personal
representatives after his death."
Consequently, her Honour held that the IVF clinic were bailees
of the sperm and, consistent with the quasi-contractual obligations
of both parties to a bailment, the IVF clinic was bound to store
and not destroy the sperm.
This is a fundamental shift in the thinking concerning the
common law of this area. If her Honour's decision is not
reversed, and that the common law now recognises proprietary
interests in sperm, then what flows from that is that the sperm
becomes like any other asset devolved as part of a succession.
Assuming that to be the case, and assuming widows to be the
beneficiaries of such disposition in most cases, it seems to me
that applicants for the use of the sperm have a far stronger legal
It may be that the courts will be far more amenable to
applications for the use of sperm – particularly for
This area cries out for comprehensive legislation which either
delimits or facilitates the use of post-mortem harvested sperm. In
the wake of this decision, the parliament should move immediately
to consult with the community. It is only an Act of Parliament that
will resolve this issue definitively.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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