GLS v Russell-Weisz & Ors [2018] WASC 79.

Background

There have been a number of cases involving women attempting to access the sperm of their deceased former or ex-partner.

Western Australian law prohibits the use of donated gametes after the owner’s death to impregnate a woman.

In this case, the 42-year-old plaintiff, GLS, was the de facto partner of ‘Gary’ at the time he died. He suffered a cardiac arrest, which rendered him unconscious on 27 January 2016. He was pronounced brain dead on 2 February 2016. After discussions with his family, including GLS, the decision was made to take Gary off life support and allow him to die. Permission was granted to GLS to arrange for sperm to be removed from Gary’s body soon after death, with the intention for her to use the sperm to conceive a child. At the time of the hearing, two years after Gary’s death, the sperm had been stored (cryopreserved) by a fertility clinic (licence holder) since extraction.

GLS informed the Supreme Court of Western Australia that a clinic in the Australian Capital Territory was prepared to use Gary’s sperm in IVF procedures in the ACT to assist GLS to fall pregnant. However, Clause 6.5 of the Directions also prohibits a licence holder from exporting (or facilitating export of) ‘donated’ gametes from the State for use in an artificial sterilization procedure without prior approval of the Reproductive Technology Council of WA (RTC). An application by GLS to the RTC to export Gary’s sperm to the ACT was refused.

Application to the WA Supreme Court

GLS sought declaratory relief through an application to the Supreme Court of Western Australia in order to direct the clinic to transfer Gary’s sperm to the ACT. As she (and her legal advisers) was of the view that she did not actually need the approval of the RTC to do so, she also sought a declaration to that effect, or in the alternative, that the Directions were invalid (to the extent approval is required) and should be read down such that approval is not required.

In support of her application, a number of affidavits were prepared in evidence to support the contention by GLS that she was Gary’s de facto partner, and that he had a strong desire to father a child with her. The plaintiff was 42 at the time of the hearing and was anxious to resolve the issues around the export of the sperm to the ACT, so that she could conceive as soon as possible. The defendant (the CEO of the Department of Health, WA) did not raise an issue about the fact that she had waited two years to commence proceedings, and other than a cursory observation by Chief Justice Martin, this issue was not taken any further.

The affidavit evidence was that GLS had met Gary in November 2009, when they were both single. Gary had children from a previous relationship. They were both of limited means, with Gary working occasionally and GLS employed part-time. They started living together in April 2010, and in March 2011, Gary bought GLS a puppy to test how they would cope with parenthood, once they could afford to have children.

Although GLS accepted Gary’s marriage proposal in mid-2012, she deferred the marriage until they had their own home. In October 2014, Gary suggested GLS have his sperm frozen so she could have his children if he died prematurely. The evidence of GLS was that Gary had a fear of dying young like his father and uncle. However, she did not share the fear and, partly due to the cost, she did not act on Gary’s suggestion. Gary also gave GLS a number of baby gifts and raised the topic of having children again in September 2015. In September 2015, GLS applied for a ‘Keystart’ home loan6, which was approved in December 2015. Settlement of a unit as a result of that process took effect in February 2016, about a month after Gary died.

Gary’s son (and executor of Gary’s estate), JDT, consented to the use of Gary’s sperm by GLS on the condition that she did not contact him or his immediate family (with the exception of his mother) or ask for financial assistance. GLS’s mother, her sister and a friend of Gary’s also swore statements, which were attached to the affidavit of GLS, to corroborate her evidence that Gary had suggested freezing his sperm in case something happened to him, and that the topic of having children was discussed regularly between the couple.

Process of applying to RTC

Solicitors for GLS applied to the RTC for approval to export Gary’s sperm to the ACT, even though they did not believe the approval was necessary on the basis that clauses 6.5 and 6.6 of the Directions did not apply, as the sperm was not donated. However, after consideration of further information provided by GLS and her solicitors, the RTC took a different view and refused to grant the approval. Although the RTC’s ruling was not discussed in any detail in this decision, it appears that the thrust of the reasons for the refusal was that using gametes, which were extracted posthumously, could contravene clause 8.9 of the Directions.

The picture painted by GLS about the relationship she had with Gary appeared to be inconsistent with an entry made by a social worker in his medical records at the time of his admission to hospital, after his cardiac arrest. It seems that although they had been in a relationship for six years, Gary drank excessively, was homeless and unemployed and they had not lived together for over two years. However, GLS was noted variously as Gary’s next of kin, girlfriend and partner elsewhere in the records. On that basis, the posthumous removal of Gary’s sperm was approved under section 22 of the Human Tissue and Transplant Act 1982 (WA) (HTTA).

GLS swore to a second affidavit setting out in detail her relationship with Gary from the time they met until his death. They commenced living together in April 2010 at various rented premises until June 2013. After this time, they were forced to live apart for a period due to the difficulty they had finding further accommodation because of the property boom in Perth. However, they continued to socialise and they maintained a sexual relationship. Gary’s financial situation deteriorated to the point that he lived in his car. He moved to a rented room, followed by various temporary places of accommodation, with the financial assistance of GLS over the course of the next 12 months. GLS funded Gary’s accommodation in a hotel when his daughter visited him from the country.

Over the following year, Gary and GLS made an application in the Keystart program, hoping to buy a house in which they could live together. Gary travelled to Karratha (funded by GLS) in an attempt to find work in early 2016, and then returned to Perth just before his death. GLS paid for Gary’s funeral.

Questions the court was asked to determine

Based on the evidence GLS had put before the court, she sought the court’s determination of the following questions:

  1. whether Gary’s sperm could be transferred from WA to the ACT;
  2. if the court determined the sperm could be moved, whether GLS required the approval of the RTC before the move, and in that regard, whether the gametes were ‘donated gametes’ within the meaning of clause 6.5 and 6.6 of the Directions (Directions) issued under the Human Reproductive Technology Act 1991 (WA) (HRTA); and
  3. if approval was required, were clauses 6.5 and 6.6 of the Directions invalid on the basis they are:
    1. inconsistent with section 22 of the HTTA;
    2. inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth);
    3. inconsistent with section 69 of the Australian Capital Territory (Self Government) Act 1988 (or alternatively, contrary to section 92 of the Commonwealth Constitution); or
    4. contrary to section 118 of the Commonwealth Constitution.

The parties to the application agreed that the answer to Question 1 should be answered affirmatively. Chief Justice Martin was of the view that if Question 2 was answered in the negative, GLS must succeed in her claim, and addressing Question 3 became unnecessary. If it was necessary to answer Question 3 (that is, if Question 2 was answered in the affirmative) and Question 3 was answered negatively, the claim must fail.

Chief Justice Martin concluded that clauses 6.5 and 6.6 of the Directions did not apply to the circumstances of the case as they do not involve the ‘donation’ of gametes.

Question 3

On the basis of the affirmative answer to Question 1 (Gary’s sperm could be transferred from WA to the ACT), and the negative answer to Question 2 (the gametes were not ‘donated gametes’ within the meaning of clause 6.5 and 6.6 of the Directions), GLS was entitled to the relief she sought, and it was considered inappropriate to resolve Question 3.

Conclusion

This judgment raises interesting questions of ownership and legal recognition of property rights in human tissue. This particular decision is limited to the unique situation of the plaintiff, GLS.

What is clear is that decisions of this nature will be heavily influenced by the factual context in which such applications are made, as well as the specific legislative framework in place in the relevant jurisdiction.

A version of this article was first published in the Australian Health Law Bulletin.