When a couple decide to go their separate ways, it’s not unusual for parties to change their minds about previous arrangements, particularly those regarding children. This article considers whether an egg, sperm or embryo can be the legal property of its producers in assisted reproductive technology. What happens when the couple who provides the gametes to create the embryo have different opinions about its fate? Who owns a dead person’s reproductive tissue?
Scenario 1: Sperm stored with consent prior to death
Robin v The Public Trustee for the Australian Capital Territory & Anor1
This case raised the question of whether cryogenically stored semen obtained from a person at his request and prior to his death constituted property, which upon his death forms part of his estate.
The sperm had been preserved following a cancer diagnosis. The evidence indicated that there were discussions between the deceased donor and his wife about ownership of the sperm and whether it would automatically transfer to her along with the rest of his estate upon his death. However there was no written Will addressing this issue and, after his death, the donor’s estate was administered by the Public Trustee.
The wife contacted the Canberra Fertility Centre and requested that the sample semen be transferred into her name. She was told that the sperm would be disposed of under the documentation signed unless otherwise prevented by relevant legislation, guidelines or court orders.
The Supreme Court held that the mere fact that the semen was formerly part of a human body is not sufficient to deny that it is property. The Court adopted an approach consistent with Justice White’s in Bazley v Wesley Monash IVF Pty Ltd2 and held that the semen stored by the Canberra Fertility Centre was property, the ownership of which was vested in the deceased while he was alive and, upon his death, in his personal representative. The relationship between the facility and the deceased was one of bailee and bailor because, so long as the storage fees were paid and contract for storage maintained, the facility agreed to store the semen. Further, the bailor’s personal representative maintained ownership of the semen following death and could request return of the property.
Scenario 2: Sperm taken after death
Jocelyn Edwards: Re the estate of the late Mark Edwards3
This case raised the question of whether the wife was entitled to possession of her late husband’s sperm, even though the sperm was extracted post-mortem and without the husband’s express consent to the procedure while he was alive.
The couple married in 2005, and by 2008, the wife had still not fallen pregnant so they discussed using assisted reproductive technology to conceive. From 2008, the husband suffered from chronic back pain and feared that he had cancer. The husband also feared that he would become infertile after receiving chemotherapy. He made his wife promise that she would still have their baby, should she become pregnant.
The husband did not have cancer, but before he and his wife were able to commence the IVF treatment, he tragically died in a workplace accident.
To proceed with the IVF treatment that she and her husband planned, the wife obtained consent from the Supreme Court of NSW to retrieve sperm from her husband’s body and it was transported to a laboratory and cryopreserved pending a further decision from the Court.
Justice Hulme considered that whilst the law does not generally regard a corpse and its tissues as property, the Australian High Court decision in Doodeward v Spence4 set out the principle that:
 “when a person by 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 retain possession of it.”
In this case, Justice Hulme held:
- the extraction and preservation of the husband’s sperm was lawfully carried out;
- work or skill was applied to the sperm in that it was preserved and stored;
- the person applying the work or skill was, in truth the wife - the doctors and technicians who extracted and preserved the sperm did not do so for themselves but as the wife’s agent; and
- no-one else in the world had any interest in the sperm.
The Court found that the wife was entitled to the possession of her late husband’s sperm. However, this did not mean that the wife would be able to use the sperm to receive IVF treatment in NSW. Given that the husband did not provide written consent for a post-mortem use of his gametes, section 23 of the Assisted Reproductive Technology Act 2007 (NSW) prevented any Assisted Reproductive Technology provider in NSW from providing IVF treatment to the wife. It is, however, possible that the wife would be able to receive IVF treatment in another jurisdiction where written consent from the deceased donor is not strictly required.5
Scenario 3: Relationship breakdown after freezing of the embryos
G and G6
Here the Court was required to settle a dispute as to the disposal of embryos created by the parties. Following separation, the woman wanted the embryos discarded, while the man wanted the embryos transferred to his custody so they could be donated either to an infertile couple or used for surrogacy.
At the time of freezing the embryos, the couple signed a consent form requesting the embryos be discarded in the event that the parties separated. The Court reviewed the Human Reproductive Technology Act 1991, which provides for the consent for storage of human embryos and its control. The Court held that since the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embryos, the embryos ought to be discarded, as set out in the terms of the signed consent.
These cases all pose interesting questions concerning legal interests in bodies and their tissues. They also all highlight the importance of preparing and executing consent documents regarding pre- or post-mortem gamete removal, storage and use.