16. Case note: Re Edwards [2011] NSWSC 478

by Tran Nguyen

Case note

Citation: Re Edwards [2011] NSWSC 478

The parties:

Jocelyn Edwards: Plaintiff

Attorney General of New South Wales

No defendant or other contradictor[1]

The court: Supreme Court of New South Wales; Justice Hulme

Date of judgment: 23/05/2011

Brief statement of material facts:

The couple, Mr and Ms Edwards, planned having children. They were however having trouble conceiving. In mid-2008 they considered using fertility treatments and assisted reproductive technology (ART).[2] In early 2009, Mr Edwards told his wife concerning about a terminal illness he might have and that he really wanted a baby with her.[3]

On 4 August 2010, the couple decided to seek in-vitro fertilisation (IVF) after discussing with the clinic and undertaking some tests.[4] The appointment was scheduled on 6 August 2010.[5] Unfortunately, Mr Edwards was died in an accident on 5 August 2010 before commencing the treatment.[6] His body was taken to a hospital. The wife then asked hospital staff about extraction of Mr Edwards’ sperm so that she can have a child later with IVF.[7] The extraction was done with the consents of the Supreme Court of New South Wales and the State Coroner. The sperm was preserved for future use with pending further order. [8]

Procedural history: This case is initial trial.

The basis of claim

Mrs Edwards initially sought an order that the stored sperm be released to her for IVF treatment.[9] However, the proceeding faced substantive law hurdles[10]: Under the Assisted Reproductive Technology Act 2007 (NSW) (ART Act), Mrs Edwards cannot use the sperm to conceive a child in NSW because the husband did not provide his written consent to do so after his death: ss 17 and 23.[11]

The court was then asked to determine two main issues: (1) whether Mrs Edwards is entitled to possession of the deceased sperm; and (2) whether she uses the sperm in obtaining ART in NSW or elsewhere.[12]

A summary of the court’s analysis

The first question is that whether the sperm is property. Hulme J referenced to the English case Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37 which held that sperm samples can be categorised as property for the law of negligence.[13] His Honour viewed that the law should recognise the deceased’s sperm as property for purpose of being used for ART; beyond that purpose was not considered.[14]

If the sperm is property, then whose property was it?[15] On the authority of Doodeward v Spence [1908] HCA 45, which is the only case binding on him,[16] Hulme J found that it did not belong to Mr Edwards’ property when being alive, nor it was part of the assets of his estate on his death.[17] Moreover, the sperm was not owned by the doctor/technicians despite they lawfully removed it. This is because they exercised the ‘work or skill’ on behalf of Mrs Edwards, rather than for their own purposes.[18] His Honour concluded that Mrs Edwards was the only person who owned her dead husband’s sperm; no one else had any interest in it.[19]

The court then went on to consider where Mrs Edwards might to use the sperm for ART.[20] Hulme J noted that the wife is prohibited to do so in NSW because the statutory obstacle.[21] Nevertheless, she may receive IVF treatment in other states or overseas. This is because:

First, ss 21 and 22 of the ART Act prevent ART providers from ‘supplying’ and ‘exporting’ or causing to be exported, a gamete to another person without a gamete provider’s written consent. However, because Mrs Edwards owns the sperm, transferring it to her would not be seen as ‘supplying’ but ‘releasing’ the sperm; and releasing it would not account ART providers causing exportation. The ART provider where the sperm was storing may transfer it to the wife without breaching the law.[22]

Secondly, Mrs Edwards can obtain elsewhere what she is prevented from obtaining in NSW because Hulme J adopted the principle in YZ v Infertility Treatment Authority [2005] VCAT 2655 where Morris J said: ‘The benefits of living in one nation would be lost if one State sought to prevent activities in another State which were lawful in that State’.[23]

Thirdly, in jurisdictions where they do not have legislations similar to the ART Act, the provisions of ART services are governed by the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research. However, the Guidelines are somewhat ambiguous as to whether a deceased person’s consent must be in writing. Moreover, the Guidelines are not statutory provisions and it is unclear as to how they are applied in practice. His Honour concluded that ART might be available to Mrs Edwards in those jurisdictions.[24]

The court’s decision:

It was held that Ms Edwards is entitled to possession of her late husband’s sperm, Mr Mark Edwards.

The order(s) made by the court:

The order made by Simpson J of the Supreme Court of New South Wales is discharged.[25]

Endnotes

[1] Re Edwards [2011] NSWSC 478, [18].

[2] Ibid, [6].

[3] Ibid, [7].

[4] Ibid, [8-9].

[5] Ibid, [10].

[6] Ibid, [10-1].

[7] Ibid, [11].

[8] Ibid, [13-4].

[9] Ibid, [17] and [24].

[10] Ibid, [22].

[11] Ibid, [20] and [99]-[101].

[12] Ibid, [24-5].

[13] Ibid, [63-4].

[14] Ibid, [78] and [84].

[15] Ibid, [86].

[16] Ibid, [79].

[17] Ibid, [87].

[18] Ibid, [88].

[19] Ibid, [90-1].

[20] Ibid, [92].

[21] Ibid, [20] and [99]-[101].

[22] Ibid, [139-140].

[23] Ibid, [129].

[24] Ibid, [118[ and [146].

[25] Ibid, [150-2].

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