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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 [2004] 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 [2001] 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 contrary.
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 use.
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:
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 position.
It may be that the courts will be far more amenable to applications for the use of sperm – particularly for insemination purposes.
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.
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