On Saturday I delivered a paper about who owned frozen eggs, sperm and embryos. I came to the conclusion that the Family Court may be able to make orders as to property settlement altering their ownership:
2014 Fertility Nurses
Australasia Conference
Mooloolaba
14 June 2014
Whose gametes are they
anyway?
By Stephen Page[1]
Introduction
As is often the case in
which judges and politicians say that science is ahead of the law, it is
uncertain as to who may own gametes and what use can be made of them. What happens when intended parents, or those
who have become parents already, split
up? Who gets to keep the gametes?
The
issue of consent to use
Fertility clinics have
procedures in place to obtain consents for the use of gametes. This is based at
least in part on licensing conditions or statute.
Legislation
as to consent
New
Zealand
The Human Assisted Reproductive Treatment Act
2004(NZ), s.46 provides for circumstances in which donors are advised
information about what might happen, for example “the availability of counselling” and “the rights given by this act to donor offspring, the guardians of donor
offspring, and other people to obtain information about donors”, but there
is nothing specific in the Act about withdrawal of consent or if the donor
happens to be the partner of the recipient, the impact of separation, divorce
and property settlement.
Australia
As a mandatory condition
of their licencing, Australian IVF Units are subject to the NHMRC Guidelines[2]. The Guidelines
have a method for the provision of consent for the use of donor gametes. The closest there is in the Guidelines to the possibility of parties
splitting up is in Guideline 9.1.2 which provide:
“Clinics should
provide and discuss information about storage of gametes (including gonadal tissue) and/or embryos. The information should include:
·
The
survival rate and suitability for transfer of gametes and embryos after
freezing and thawing for the particular clinic;
·
The
live-birth rate following the use of the thawed gametes, tissues and embryos;
·
Available
information about outcomes for persons conceived using stored gametes or
embryos;
·
Any
legal or other limitations to use, including posthumous use; and
·
The
maximum storage time.”
Paragraph 9.4 to 9.6 set out the circumstances in
which consent is obtained and when consent can be withdrawn, namely anytime:
“Consent
9.4 Obtain
consent from all participants in all procedures before clinical ART procedures are undertaken,
clinicians must ensure that consent is obtained from all participants (and, where relevant, their
spouses or partners), is informed,
voluntary, competent, specific and documented, and remains current.
9.4.1 Consent should be
obtained in writing, following the provision
and
discussion of information about the implications of proposed
reproductive
procedures, adequate time for consideration of the
information
and adequate opportunities for personal preparation
(see
paragraphs 9.1 to 9.3).
9.4.2 Clinics should have procedures to ensure that consent is
voluntary
and free from coercion.
9.4.3 Consent forms should
include the following statements:
that
the participants have received the information provided
about
the proposed procedures;
·
that counselling by a professional counsellor has been offered;
·
that participants have had explained to them the procedures
involved and the risks of
complications and have had their
questions
answered;
·
that participants have had explained to them any mandatory
uses
of data;
·
whether or not the participants give permission for any
additional
(nonmandatory) uses or disclosures of identifying
information
or data collected about them;
·
whether or not the participants give permission to be contacted
in
the future with a request for participation in follow-up
research;
·
the arrangements for storage and disposal of gametes
or
embryos;
·
a signed statement by the supervising clinician that he or she
has
provided information about the proposed procedures; and
that
relevant participants consent to each proposed procedure.
9.5 Obtain consent from
all participants in donated gamete or
embryo
programs
The
donation of gametes or embryos is associated with a range
of
difficult ethical, social and legal considerations for participants. Clinics
must
obtain a separate consent form from each participant in gamete
or
embryo donation programs and their spouse or partner (if any).
9.5.1 Consent forms for
the donation of gametes or embryos should
include:
·
full details of the agreed arrangements for any treatment
involving
donated gametes or embryos (see Sections 6 and 7);
·
an acknowledgment that each participant (and spouse or
partner,
if any) has received and understood the information
provided
about gamete or embryo donation;
·
a statement that the gamete or embryo donor understands and
acknowledges
his or her biological connection to any persons
conceived
using his or her donated gametes or embryos;
·
a statement giving explicit permission to make the information
specified
in paragraphs 6.10 and 6.11 available to the recipients
and
any person conceived through the procedure, respectively;
a
description of the arrangements set out in paragraphs
6.14
and 7.3 for responsibility for the gametes or embryos
after
donation; and
·
provision for signature by the participant (and his or her spouse
or
partner, if any).
9.5.2 Potential gamete or
embryo donors and gamete or embryo
recipients
should be given adequate time between provision of
information
and obtaining consent to allow consideration of the complex
issues
involved.
9.6 Recognise the right
of participants to withdraw or vary
their
consent
Clinics
must recognise that, with the exception of some specific issues
relating
to the donation of gametes and embryos (see paragraphs 6.14
and
7.3), participants have the right to withdraw or vary their consent
at
any time.”
Paragraph
9.6 refers to paragraph 6.14 and 7.3. - 6.14 relates to maintaining a
consistent chain of responsibility and 7.3 is also about ensuring a consistent
chain of responsibility for example 7.3 provides, relevantly:
“If
the embryo donors have not specified a recipient for their embryos, clinics
should keep or place the embryos
in storage until suitable recipients are selected by the clinic for treatment.”
In
three Australian jurisdictions State legislation provides for specific
regulation of IVF practices and, relevantly for this discussion, about the
issue of consent.
New South Wales
The Assisted Reproductive Technology Act 2007 (NSW), s.17 provides for the giving of consent from a gamete
provider in written form. The consent
can be modified or revoked at any time until the gamete is placed in the body
of a woman or an embryo is created using the gamete[3],
s.18 provides that an ART provider must not use a gamete to create an embryo
outside the body of a woman except with the consent of the gamete provider and
in a manner that is consistent with the gamete provider’s consent, for which
there is a maximum penalty of 400 penalty units for a person and 800 penalty
units for a corporation.
Similarly
there is an offence for providing ART treatment to a woman using a gamete
except with the consent of the gamete provider and in a manner that is
consistent with the gamete provider’s consent.[4]
Similarly
it is an offence to export or to cause to export from New South Wales a gamete
or an embryo except with the consent of the gamete provider and in a manner
that is consistent with the gamete provider’s consent[5].
Victoria
The Assisted Reproductive Treatment Act 2008 (Vic) s.16 provides:
(1) “Gametes donated by a person may be used in a treatment
procedure only if the person who donated the gametes has
consented to the use of the gametes in a
treatment procedure of that kind.
(2) An embryo may be used in a treatment procedure only if each of
the persons who donated gametes
used to create the embryo has consented to the use of the person’s gametes for a treatment procedure of that kind.”
S.17 sets out the formal requirements for the consent and,
critically the consent:
“Must not have been withdrawn or have lapsed
when the treatment procedure takes place.”[6]
A person who gives consent may withdraw it at any time before the
procedure or action consented to is carried out.[7] The withdrawal of consent must be in writing
and needs to be given in a particular way:
“A person withdrawing a consent must give
the withdrawal or cause the withdrawal to
be given as soon as practicable –
(a) to the registered ART
provider or doctor to whom the consent was given; or
(b) To the registered ART
provider or doctor with whom the sperm, oocyte or embryo to which the consent
relates is kept or stored;
(c) In accordance with the
regulations.”[8]
There is no provision in the Assisted
Reproductive Treatment Regulations 2009 (Vic) for the withdrawal of
consent.
Western
Australia
The Human Reproductive
Technology Act 1991 (WA), s.22 sets out the provisions for consents, which
need to be in writing and can be withdrawn at any time provided the gametes
have not been used or the egg or embryo has not been used[9].
Section 22 provides:
“ (1) For the purposes of the licence
condition referred to in section 33(2)(e) —
(a) The gametes of a person shall not be used, or
for such a use be received by a licensee or participant,
unless —
(i) there is an effective consent, by that
person, to the gametes being so used; and
(ii) the gametes are used in
accordance with that consent;
(b) The gametes of a person shall not be kept
in storage unless —
(i)
there is an effective consent, by that person, to the storage; and
(ii) the gametes are stored in accordance
with that consent;
(c) The gametes of a person shall not be used
in an in vitro fertilisation procedure unless there is
an effective consent, by that person, to any human egg undergoing
fertilisation or human embryo thereby derived being used for a
consequential purpose authorised by this Act;
(d)
Where the development of an egg undergoing fertilisation or a human embryo was brought about by an in
vitro fertilisation procedure it shall not be kept in
storage unless —
(i) there is an effective consent, by each
person from whose gametes the egg or embryo was derived,
to the storage; and
(ii) the egg or embryo is stored in
accordance with that consent;
(e) Where the development of a human egg
undergoing fertilisation or a human embryo was brought about by an
in vitro fertilisation procedure, it shall not be used for any
purpose, or for such a purpose be received by a licensee or
participant, unless —
(i) There is an effective consent, by each person
from whose gametes the egg or embryo was
derived, to the use
for that purpose; and
(ia) In the case of a use outside
the body of a woman, there is an effective consent to the use
for that purpose by the woman on whose behalf it
is being developed and her spouse or de facto
partner, if any; and
(ib) In the case of implantation in
the body of a woman, there is an effective consent to the
implantation by the woman and her spouse or de facto
partner, if any; and
(ii) The purpose is authorised by this
Act; and
(iii) That egg or embryo is used in accordance
with that consent, and the Code may make further
provision in relation to such, or related, matters.
(2) Where a consent is given in general terms to
the use or storage of human gametes
separately, whether human eggs or human sperm, that consent shall be taken to relate to the use or
storage of any of those eggs or sperm, and also to any human egg undergoing fertilisation or human embryo
derived from the use of the human
gametes, for any purpose, save that —
(a) Any such consent may be given
subject to specific conditions in its terms;
and
(b)
Notwithstanding subsection (4) or that a human egg undergoing fertilisation or a human embryo, may
have developed which is derived from the use of human gametes
the subject of any particular consent, in so far as it
relates to any human egg or human sperm that has not been used that
consent may be varied or withdrawn,
but where a human egg in the process of
fertilisation, or a human embryo, has been developed
from any human gametes the consent thereafter to be required is
not a consent to the use of those human gametes but a specific
consent relating to that particular egg undergoing fertilisation
or embryo only.
(3) The terms of any effective consent may from
time to time be varied or the consent
withdrawn, unless subsection (4) applies, by notice given by the person who gave the consent to the person
keeping the human gametes, human eggs undergoing fertilisation or human
embryos to which the consent is relevant.
(4) The terms of any
effective consent to the use of any human gametes, a human egg
undergoing fertilisation or a human embryo cannot be varied, and such consent
cannot be withdrawn, once the gametes have, or that egg or embryo has,
been used.
(5) A consent to the
use of a human egg undergoing fertilisation or a human embryo must specify
the purposes for which the egg or embryo may be used and may specify
conditions subject to which the egg or embryo shall or shall not be used.
(6) A consent to the
keeping of any human gametes, a human egg undergoing fertilisation or a human embryo must —
(a) specify the
maximum period of storage, if that is to be less than such limit as may be prescribed or may be
determined in accordance with section 24(1)(b);
and
(b) give
instructions as to what is, subject to this Act, to be done with the gametes, the egg or the embryo if the
person who gave the consent is unable by
reason of incapacity or otherwise to vary the terms of the consent or to withdraw it, and may specify conditions
subject to which the gametes, or the egg
or embryo, shall or shall not remain in storage.
(7) Before a
licensee gives effect to a consent given for the purposes of this Act the licensee shall ensure that each
participant has been provided with a suitable
opportunity to receive —
(a)Proper
counselling about the implications of the proposed procedures; and
(b)Such other
relevant and suitable information as is proper or as may be specifically required by the Code or
directions, including an explanation of the
effect of subsection (3) and subsection (4).
(8)For the purposes
of this Act a consent to the use or keeping of any human gametes, a human egg undergoing fertilisation
or a human embryo shall not be
taken to be effective unless —
(a) It is given
in writing; and
(b) Any
condition to which it is subject is met; and
(c) It has not
been withdrawn; and
(d)Those gametes
are, or that egg or embryo is, kept and used in accordance with the consent.
(9) Where a consent required by or under this Act
is not given, or is not effective, or is not complied with that
matter may be a cause for disciplinary action
or proceedings for an offence but does not necessarily affect the rights of any person.
Fraud
It
is essential that consent be properly given.
Overseas
colleagues of mine have been keen to point out to me the case of Megan Jane
Hooper who in March plead guilty to one charge of document fraud in the Perth
Magistrates Court. She and her husband
had created several frozen embryos in 2007, and the couple had a child 2009
following IVF. In 2010 Ms Hooper wanted
to have a second child but her husband opposed this. They then separated. Ms Hooper forged her husband’s signature on a
Fertility Clinic consent form in 2011, giving her access to one of the frozen
embryos and allowing her to proceed.
Ms
Hooper was handed a conditional release order for 6 months, fined $500 and
given a spent conviction.
The
case highlights that except where forms are prescribed (as they are, for example,
in Victoria) that it is essential that the witnessing of the consent forms be
by a JP or solicitor and that identification has been firmly established.
Forms aren’t enough
In
Groth & Banks (2013)[10]
Mr Groth and Ms Banks were in a de facto relationship but had separated. Subsequently Ms Banks suggested to Mr Groth
that he supply sperm to her through an IVF clinic in Melbourne so that she
could have a child. He agreed. They undertook counselling and signed the
Victorian mandated form which amongst other things said that he was a donor not
a parent. The couple told the clinic
that they were a couple (which they were not).
Subsequently
after the child was born Mr Groth went to the Family Court seeking orders
concerning the child as he said he was the father of the child. Ms Banks relied on the Status of Children Act (Vic) which provided that she and she alone
was the parent of the child. Mr Groth
was able to rely on the extended definition of “parent” under the Family Law
Act whereby he was a parent of the child.
Significantly
the judge refused to consider the consent form as the consent form had been
signed under State legislation which in turn had been overridden by the Federal
legislation, the Family Law Act and
therefore in the views of the judge the consent form was irrelevant.
But who
owns the gametes?
It is now clear that sperm held at an IVF clinic can be
property. If sperm can be property, can
eggs and embryos can also be property?
Sperm is
property
Doodeward v Spence (1908)[11]
Mr Doodeward was in possession of a two-headed stillborn
baby. The baby was born in 1868 in New
Zealand. Dr Donohoe who arrived after
the birth took the body away with him and preserved it with spirits in a bottle
and then kept it in his surgery as a curiosity. In 1870 following his death it
was sold by auction for about £36 and later came into the possession of Mr
Doodeward who it appears would present it at side shows.
Mr Doodeward was prosecuted for possession of an unburied human
corpse.
The two-headed stillborn baby was referred to by Justice Barton as
“a dead-born foetal monster”, ‘an aberration of nature, having two heads”
and “a well-preserved specimen of
nature’s freaks”.
Chief Justice Griffith
said:
“If, then, there can, under some
circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said,
that the law will protect that rightful
possession by appropriate remedies. I do
not know of any definition of property
which is not wide enough to include such a right of permanent possession. By
whatever name the writers called, I think it exists, and that, so far as it
constitutes property, a human
body, or a portion of a human body, is
capable by law of becoming the subject
of property. It is not necessary to
give an exhaustive enumeration
of the circumstances under which such a right may be acquired, by entertaining no doubt that, when a person has by the 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, at
least as against any person not entitled
to have it delivered to him for the purpose of burial, but subject to, of
course, to any positive law which forbids its retention under
the particular circumstances.
In the present case the evidence
showed the body came, not unlawfully, into Dr Donohoe’s
possession, that some – perhaps not much – work and skill had been bestowed by him upon it, and that it had
acquired an actual pecuniary value.
Under these circumstances
and in the absence of any positive law to the contrary, I think an action or life interference with the
right of possession. I do not think that
the Anatomy Act has any bearing
on the case.”(emphasis added)
In Roche v Douglas [2000][12]
Master Sanderson decided that there was property in human tissue samples which
had been extracted for the purposes of DNA testing:[13]
“I am satisfied that it is proper to
hold that the human tissue is property.
In reaching that
conclusion I am mindful of what was said by Griffiths CJ about the need to
apply the principles of law in
line with reason and good sense. In this
sense it might well be possible
by the use of DNA testing to establish definitively whether the deceased is the
father of the plaintiff. If that is possible it will obviate the need
for extensive evidence, much
of that evidence anecdotal, to prove the plaintiff’s claim. There will be a considerable saving in time and cost, some of the particular
facts of this case there is a
compelling reason for holding the tissue samples to be property.
In the widest sense, it defies
reason to not regard tissue samples as property. Such samples
have a real physical presence. They
exist and will continue to exist until some
step is taken to effect destruction.
There is no purpose to be served in ignoring physical reality. To deny
that the tissue samples are property, in contrast to the paraffin in which the samples are
kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal
fiction. There is no rational or logical justification for such a result.”
That case was followed in S
v Minister for Health (WA) (2008)[14].
In Pecar v National Australia Trustees Ltd (unreported, Supreme
Court of New South Wales, Bryson J, 27.11.1996) had to determine whether tissue
samples of other parts of the deceased person were property. His Honour stated: R8 refers to “any
property” as extended by sub. r(4) thus:
“In this rule ‘property’ includes any land
and any document or other chattel whether in
the ownership, possession, custody or power of a party or not.”
It is for consideration
whether the tissue samples or other parts of a dead human body are
property. Except in unusual
circumstances, rights of ownership do not exist in the … [his Honour then cited
the statement by Griffith CJ in Doodeward
v Spence] this view would justify a
right to retain possession of autopsy specimens, especially in this case where
the human tissue is fixed in and an accretion to a paraffin block which itself
is susceptible of ownership. In my
opinion the pathology specimen is property within the general meaning of that
term which connotes that property has an owner.
In my opinion however
the word “property” in r8 as extended by subr(4) is not used so as to require
that there be any right of ownership.
The rule does not deal with rights of ownership but with adduction of
evidence, and it was not significant for the purposes of the rule whether or
not there was a right of ownership. In
my opinion the autopsy samples are property within the meaning of r8.
The power in r8 is
discretionary but I approach it with a general disposition favourable to
attaining procedural justice by employing the powers of the Court to enable
litigants to bring forward relevant evidence even if they do not have a legal
right to control the disposition of that evidence. This is the ordinary approach to applications
for subpoenas which are issued as of course, both for the production of
documents and for the attendance of persons.
Where there appear to be reasonable grounds for expecting that relevant
evidentiary material may be obtained, powers such as this should be exercised;
subject however to fair terms to deal with the expense or inconvenience imposed
on persons who are not parties.”
In an English case, Yearworth v North Bristol NHS Trust (2009)[15] the Court of Appeal” found there was
ownership in sperm:[16]
“In this jurisdiction developments
in medical science now require a re-analysis of the common law’s treatment of and approach to the issue of
ownership of parts or products of a
living human body, whether for present purposes (viz an action in negligence) or otherwise … for us the
easiest course would be uphold the claims of the
men to have had ownership of the sperm for present purposes by reference to the
principle first identified in
the Doodeward case … we would have no
difficulty in concluding that
the unit’s storage of the sperm in liquid nitrogen at -196C was an application to the sperm of work and skill
which conferred on at the substantially different
attribute, namely the arrest of its swift perishability… however … we are not
content to see the common law in this area founded upon the principle in the Doodeward case … which was devised as an
exception to a principle, itself of exceptional
character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products
which have, and which have not, been subject to
the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the
body, for example, a finger which has been amputated
in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before
starting the necessary medical procedures, be able to escape liability on the footing that the body part had not
been subject to the exercise
of the work or skill which had changed its attributes… in our judgment, for the purposes of their claims to negligence,
the men had ownership of the sperm which they
ejaculated…”
The other issue in Yearworth was whether there was a bailment
of the sperm. Bailment is essentially
where someone holds property on your behalf.
The Court of Appeal summarised the relevant principles of the law of
bailment:
a. A bailment can exist notwithstanding that it is gratuitous;
b. Although eroded to a limited extent by principles later to be
developed in relation to involuntary bailment, the basic justification of a
casting duties upon a gratuitous bailee has always been the person who’s not
obliged to take possession of a chattel in relation to which another person has
rights and that, if he chooses to do so, he is assumes duties;
c. Thus “the obligation arises
because the taking of possession in the circumstances involves an assumption of
responsibility for the safe keeping of the goods” ;
d. A bailment arises when, albeit on a limited or temporary basis,
the bailee acquires exclusive possession of a chattel or a right thereto;
e. Reservation by the bailor of a right to require that the chattel
be ultimately restored into his own possession or to his order is not necessary
to contractual bailment and there is no ground for application of any different
principle to a gratuitous bailment. The
court then went on to reject an American decision that tissue was donated i.e.
was properly capable of passing from the donors to the donees. This followed that the donors has abandoned
any possessory interest in the tissue.
The University in question was not a bailee but a donee. We therefore respectfully disagree with the
overture remarks of the judge at first instance;
f. A gratuitous bailee assumes the duty to take reasonable care of
the chattel;
g. If a gratuitous bailee
holds himself out to the bailor is able to deploy some special skill in
relation to the chattel, his duty is to take such care of it as is reasonably
to be expected of a person with such skill.
h. We are unpersuaded that it follows from the fact that the bailment
is not contractual that the liability of the gratuitous bailee must lie in tort
absent of authority to the contrary of which we are unaware, we are strongly
attracted to the view that his liability is sui generis (all encompassing);
i.
Indeed it may be that,
whether gratuitous bailer has extended, and broken, a particular promise to his
bailor, for example that the chattel will be stored in a particular place or a
particular way, the measure of damages may be more akin to that referable to a
breach of contract than to tort.
The Court of Appeal went on to say[17]:
“When in light of these principles, we
revert to the facts of the present claims, we find as follows:
(a) The Unit chose to take
possession of the sperm. Although it
often stored sperm as part of the Trust’s overall provision of oncological
medical services, in return for which no doubt it received public funds, any
bailment of the sperm must be classified as gratuitous.
(b) The unit’s assumption
of responsibility for the careful storage of the sperm was express and
unequivocal:
‘We can undertake to look after [it] with all possible
care’ …
(c) The Unit acquired
exclusive possession of the sperm.
(d) The Unit held itself
out to the man as able to deploy special skill in preserving the sperm.
(e) Analogously to its
admission in relation to the claims in tort, the Trust admits that, if the Unit
was a a bailee of the sperm, it was in breach of the duty of care consequent
upon the bailment if the Unit extended, and broke, particular promise to the men,
namely that the sperm “will be stored… at -196° C…”.
The Court of Appeal then concluded without hesitation that there was a bailment of the sperm by the
men to the Unit and that, subject to the resolution of factual issues yet to be
determined, “the Unit was liable to them
under the law of bailment as well as under that of tort.”
Bazley v Wesley Monash IVF Pty Ltd (2010) [18]
Justice White in the Queensland Supreme Court was concerned with
straws of sperm which were extracted from a husband of the applicant. The issue was whether the sperm was property
which could form part of his estate.
Justice White held[19]:
“The 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 is vested in the deceased while alive and in his
personal representatives after his death.
The relationship
between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was
paid, and contact maintained, the respondent
agreed to store the straws. The
arrangement could also come to an end when
the respondent died without leaving a written directive about the semen, but plainly the bailor, or his person
representatives, maintained ownership of the straws of semen and could request the return. Furthermore, it must be implied into the contract of bailment, that the semen would,
if requested, be returned in the manner in which
it was held, which preserved its essential characteristics as frozen semen capable of being used. Any extra costs associated with the
redelivery would be at the applicant’s
expense.”
Jocelyn
Edwards; Re the Estate of the late Mark Edwards (2011)[20]
Justice Hulme of the Supreme Court to New South Wales had to
consider whether to make a declaration as to whether the deceased’s wife was
entitled to possession of sperm that was extracted from his body after his
death. His Honour asked the question:
“What right does a woman have to take sperm
from the body of her deceased partner so
that she may conceive a child?”
Following Doodeward, Justice Hulme stated that in that present
case the removal of the sperm was lawfully carried out pursuant to orders. Work and skill was applied to it in that it
had been preserved and stored.
Accordingly, on this longstanding and binding authority the sperm had
been removed from the late Mr Edwards is capable of being property.
His Honour stated that Bazley and the cases from other
jurisdictions provide support for the conclusion of property[21]:
“Although they are not binding, they are,
collectively persuasive of the view that the law
should recognise the possibility of sperm being regarded as property, in certain
circumstances, when it has been
donated or removed for the purpose of being used in assisted reproductive treatment.
Yearworth shows a preparedness for the England and Wales Court of Appeal to extend the law considerably beyond
Doodeward … however, the conclusion of
property in the present case can be made under the High Court’s long-standing authority without any need for further
exploration of the limits of the law.”
Re H, AE(No.
2)[2012][22]
Orders were made by the South Australian Supreme Court to remove
sperm from the deceased and then to be preserved. The applicant then sought a declaration that
she was entitled to possession of the sperm recovered from the deceased and an
order for its release to her.
Justice Gray concluded that the applicant was able to own the
sperm as property. His Honour held[23]:
“I am of the view that work or skill has
been applied to the deceased’s sperm by the preservation
of it performed by Repromed. Therefore,
subject to a matter which I’ll discuss
later, the deceased’s sperm may be treated as property, at least to the extent that there is an entitlement to
possession.”
His Honour referred to the decision Edwards; where Justice Hulme stated[24]:
“It was not [the deceased’s] property. The authorities to which Higgins J referred, which were not doubted by the
majority, support that proposition. The
point of departure between the
majority and Higgins J [in Doodeward] was only as to the recognition of the ‘lawful exercise of
work or skill’ exception. Accordingly,
upon the authority of Doodeward …
as [the deceased] did not have property in his semen when he was alive, it did not form part of the
assets of his estate upon his death. A
second theoretical possibility
was suggested by Mr Kirk and that was the property lay in the doctors and technicians who lawfully
exercised the ‘work or skill’, such as was the case
of Dr Donohoe in Doodewarde… however, the
better view is that the doctors who
removed the sperm and the doctor and technicians who then preserved and stored it did not do so for their own purposes
but performed these functions on behalf
of [the applicant]. In effect, they were acting as their agents
and so did no acquire any proprietary
rights for their own sake.
It remains to be considered whether
[the applicant] herself has any entitlement.
Senior Counsel put her
asserted entitlement to possession, not upon the basis that the semen was part of the assets of the
estate, but that as ‘incidental to a duty as
Administrator in relation to
the disposal of the deceased’s body, right to possession of any part thereof). But again, the authorities endorsed by the
High Court in Doodeward… do
not support a proposition that [the applicant’s] ‘duty’ gave her any entitlement to do as she wished other
than, to use the words of Higgins J, ‘to give the corpse decent internment’. … there is, available, however, the
alternative of recognising a
right that extends beyond that which she would have as Administrator. The
only relevance that there is in [the applicant] being the Administrator of the estate is that the views of such a
person will be a relevant matter to consider in determining how the discretion should be exercised as to making the
declaration sought. Obviously administrating in this case is in
favour.
Subject to a consideration of
various discretionary aspects … in my view [the applicant] is the only person in whom an entitlement to
property in the deceased’s sperm
would lie. The deceased was her
husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in
them. My conclusion is that, subject to what follows, it would be open
to the Court to conclude that [the
applicant] is entitled to possession of the sperm.” (Emphasis added).
Justice Gray held[25]:
“In my view, for the reasons identified by
Hulme J, this is not a case where the sperm was
the property of the deceased. The
Repromed staff who exercised work and skill did
so not for their own purposes, but performed these functions as a consequence
of the orders of the Court. They were acting as agents and did not
acquire any entitlement to the
sperm in their own right. I also do not
accept that the sperm formed part
of the assets of the deceased’s estate.
In substance I agree with Hulme J that the applicant is the only person in whom an entitlement to the sperm
could lie. The sperm was removed on her application. In my view, the applicant has a prima facie entitlement to possession of the sperm but,
for the reasons that follow, that entitlement is
subject to such conditions that the court may impose in its inherent
jurisdiction.”
I note that subsequently in Re H, AE (No. 3) that orders were made
enabling treatment to be undertaken by Genea in the ACT[26].
Vallance & Marco (2012)[27]
Ms Vallance proceeded to the Family Court seeking that she was
granted ownership of frozen semen specimen of Mr J with whom she once had a
relationship. Mr J had suicided. However the Family Court did not have
jurisdiction because although Ms Vallance and Mr J formed a loving and
committed relationship and discussed between themselves and family members the
intention to marry and start a family they had not formed a de facto
relationship nor had they married.
Justice Watts merely said on the property point noting the case of Edwards:
“It may be that the frozen sperm specimen
can be treated as property.[28]”
Clark v Macourt (2013)[29]
This was a decision of the High Court concerning a commercial
dispute involving the sale of the St George Fertility Centre. The vendor, in the words of Justice Hayne[30]:
“Agreed to sell certain assets of the
practice, including a stock of frozen donated sperm.”
Almost 2000 straws of the sperm were not subject to warranty and
were unusable. As his Honour stated:
“The appellant could not buy suitable
replacement sperm in Australia but could in the United States of America.
The primary Judge found that buying 1996 straws of replacement sperm from the American
supplier(‘Xytex’) would have cost
about $1 million at the time the
contract was breached. The purchase
price for the assets (including the stock of frozen donated
sperm) was less than $400,000.” [31]
There
is no doubt in the mind of Justice Hayne that sperm was stock and therefore
property. Justice Keane noted that the
sale deed included this statement:
“Assets means the following assets of the vendor
used in or attached to the Business, being
the goodwill of the vendor in respect of the Business, Records, Embryos (to the extent title in them can at law pass to the Purchaser) and Sperm
but specifically excluding Plant
& Equipment and any debts owed to the vendor in respect of the Business as at completion … sperm involved
means all frozen sperm whether from donors,
stored for patients or reserved for patients with the vendor in the Business.”(Emphasis added)
The
case appeared to turn about whether the sperm was compliant or
non-compliant. Justice Keane stated[32]:
“The
respondent’s contention to ultimately rest upon the Code of Practice probelgated by RTAC. The respondent relied upon cll11.9 and 11.10
of the National Health and Medical
Research Council guidelines imported into the RTAC Code by clause cl7.1 of the code. These guidelines were concerned to prevent commercial trading in human sperm;
and they also contemplated that practitioners
were entitled to recover their reasonable expenses. The appellant denied that she had made a profit from supplying sperm, and
there was no reason to doubt her evidence. The appellant, in providing ART services for
a fee, cannot sensibly be said
to be engaging in commercial trading in sperm for a profit.
In this Court the respondent also sought to base the
contention that compliant St George
sperm would have been worthless upon s.16 of the Human Cloning for Reproduction and Other Prohibited Practices Act
2003 (NSW)…
The Human Cloning Act[33]
was not in force at the date of the making or completion of the Deed. It was not suggested that it operated
retrospectively upon the Deed. Accordingly, it does not affect the
lawfulness of the Deed, or the expectations that the parties to it, or claim to enforce those expectations.
The last point to be made in relation to the first strand
of the reason of the Court of Appeal is
that the observations by Tobias AJA that the appellant did not obtain title to the sperm acquired from St George and that a
‘donor could always withdraw his consent
to the use of his sperm at any time’, cited above, are irrelevant. There was no suggestion
in the evidence that the value of the appellant’s contractual entitlements might be in any way diminished by those
circumstances.”
Justices
Crennan and Bell stated[34]:
“The
appellant gave evidence that Xytex Corporation… operated a business in which Xytex supplied donated sperm to
buyers, which included both patients and medical
practitioners.”
The
appellant also gave uncontested evidence that in her business, during the
period from 2002 to 2005, she used donor sperm from different local and overseas sources which included the
St George sperm, her clinic’s stock and stock obtained from Cryos International
Sperm Bank, Queensland Fertility Clinic, Westmead Fertility clinic and Xytex. The appellant gave evidence that she did not
make a profit from patients when using donor sperm which she had purchased and
that there was always a ‘buffer’ between the real cost to her and those passed
on to a patient. Evidence was also given
by and on behalf of the appellant of unsuccessful efforts to recruit local
sperm donors through newspaper advertising in 2005, when the appellant had
exhausted his stock of St George sperm which complied with the warranty. Further, evidence that a shortage of donors
was occasioned in 2005 by requirements for donor identifications was not
disputed.
As
their Honours stated[35]:
“It
is the plaintiff’s objectively determined expectation of recruitment of
expenses which is protected by an
award of damages for loss of a bargain.
This explains the prima facie measure of damages at common law
in respect of a sale of goods…and codified
subsequently in sale of goods legislation.
The measure is the market price of goods
at the contractual time for deliver, less the contract price (if the latter has
not been paid to the
seller). This is the amount of money
theoretically needed to put the promisee
in the position which would have been achieved if the contract had been formed.
Subject to being displaced for some reason, this is the applicable
measure, notwithstanding the
circumstances that a buyer is a non-profit organisation, or that the buyer is constrained in a
relation or market regulation and control as to the price at which the buyer can sell to a subsequent
purchaser.”
Are eggs and embryos
any different to sperm?
I
can’t see that they have any different characteristic at all to sperm. Eggs, sperm and embryo are all transported
through special means. The eggs
particularly, along with sperm, are imported from the United States, such as
Monash does with World Egg Bank. These
are consistent with the physical and actual characteristics of property.
It
is clear that both eggs and embryos, like sperm will have acquired attributes
differentiating them due to the lawful exercise of work or skill of doctors and
technicians, for example in terms of eggs their preservation and in terms of
embryos their creation and preservation, as in Yearworth regarding sperm..
If it be the case a human tissue, as seen in Roche v Douglas can be property surely both eggs and embryos can
also be property.
Clearly
eggs and embryos have special characteristics, including containing human DNA
and the ability, in respect of an embryo, if implanted, to become a
person. However an embryo is not a
person. It is merely an embryo. A child is not conceived until pregnancy
results.[36]
Subject
to the various licencing requirements as to donations, it would appear on its
face that the owners of embryos would be the intended parent or parents and not
the donor of the gametes.
I
note here the view by Justice Hulme in Edwards
that doctors and technicians are in effect acting as agents for intended
parents and do not acquire any proprietary rights for their own sake. As Clark
v Macourt shows, however, embryos can also be stock.
Could there be property
settlement orders under the Family Law Act concerning sperm, eggs or embryos?
The
Family Law Act 1975 (Cth), s4 defines
property as meaning:
(a) “In relation to the parties to a marriage or
either of them - - means property to which those parties are, or that party is, as
the case may be, entitled, whether in possession or reversion
(b) ; or
(c)
In
relation to the parties to a de facto relationship or either of them - - means
property to which those parties are, or that party is, as the case may be,
entitled, whether in possession or reversion.” (emphasis
added)
It
seems fairly clear from the case law referred to above that sperm can be
property. Being in possession of something as a matter of right, in accordance
with Doodeward, could mean that
property possessed by that party is therefore property capable of being the
subject of orders under the Family Law
Act. It would therefore follow as a
matter of course that embryos and eggs could also be property.
What is just and
equitable: Stanford v Stanford (2012)
It
is a basic requirement before the court makes any orders under the Family Law Act as to property settlement
that it is just and equitable to make the order: s.79(2). What impact that
section will have as to what might happen with eggs, embryo and sperm in a case
involving a warring couple, having regard to the High Court decision in Stanford is not known.
As
the majority judgment in Stanford v
Stanford[37]
held in 2013, the court then would not chart the metes and bounds of what is
just and equitable. Every case needs to be decided on its own facts. The
majority[38]
set out at length the principles concerning what is just and equitable[39]:
“It
will be recalled that s 79(2) provides that "[t]he court shall not make an
order under this section unless it is satisfied that, in all the circumstances,
it is just and equitable to make the order". Section 79(4) prescribes
matters that must be taken into account in considering what order (if any)
should be made under the section. The requirements of the two sub-sections are
not to be conflated. In every case in which a property settlement order under s
79 is sought, it is necessary to satisfy the court that, in all the
circumstances, it is just and equitable to make the order.
The
expression "just and equitable" is a qualitative description of a
conclusion reached after examination of a range of potentially competing
considerations. It does not admit of exhaustive definition. It is not possible
to chart its metes and bounds. And while the power given by s 79 is not
"to be exercised in accordance with fixed rules", nevertheless, three
fundamental propositions must not be obscured.
First,
it is necessary to begin consideration of whether it is just and equitable to
make a property settlement order by identifying, according to ordinary common
law and equitable principles, the existing legal and equitable interests of the
parties in the property. So much follows from the text of s 79(1)(a) itself,
which refers to "altering the interests of the parties to the marriage in
the property" (emphasis added). The question posed by s 79(2) is thus
whether, having regard to those existing interests, the court is satisfied that
it is just and equitable to make a property settlement order.
Second,
although s 79 confers a broad power on a court exercising jurisdiction under
the Act to make a property settlement order, it is not a power that is to be
exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon
CJ observed that a power to make such order with respect to property and costs
"as [the judge] thinks fit", in any question between husband and wife
as to the title to or possession of property, is a power which "rests upon
the law and not upon judicial discretion". And as four members of this
Court observed about proceedings for maintenance and property settlement orders
in R v Watson; Ex parte Armstrong:
"The
judge called upon to decide proceedings of that kind is not entitled to do what
has been described as 'palm tree justice'. No doubt he is given a wide
discretion, but he must exercise it in accordance with legal principles,
including the principles which the Act itself lays down".
Because
the power to make a property settlement order is not to be exercised in an
unprincipled fashion, whether it is "just and equitable" to make the
order is not to be answered by assuming that the parties' rights to or
interests in marital property are or should be different from those that then
exist. All the more is that so when it is recognised that s 79 of the Act must
be applied keeping in mind that "[c]ommunity of ownership arising from
marriage has no place in the common law". Questions between husband and
wife about the ownership of property that may be then, or may have been in the
past, enjoyed in common are to be "decided according to the same scheme of
legal titles and equitable principles as govern the rights of any two persons
who are not spouses". The question presented by s 79 is whether those
rights and interests should be altered.
Third,
whether making a property settlement order is "just and equitable" is
not to be answered by beginning from the assumption that one or other party has
the right to have the property of the parties divided between them or has the
right to an interest in marital property which is fixed by reference to the
various matters (including financial and other contributions) set out in s
79(4). The power to make a property settlement order must be exercised "in
accordance with legal principles, including the principles which the Act itself
lays down". To conclude that making an order is "just and
equitable" only because of and by reference to various matters in s 79(4),
without a separate consideration of s 79(2), would be to conflate the statutory
requirements and ignore the principles laid down by the Act.
Adherence
to these fundamental propositions in exercising the power in s 79 gives due
recognition to "the need to preserve and protect the institution of
marriage" identified in s 43(1)(a) as a principle to be applied by courts
in exercising jurisdiction under the Act. If the parties have made a financial
agreement about the property of one or both of the parties that is binding
under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a
property settlement order under s 79. But if the parties to a marriage have
expressly considered, but not put in writing in a way that complies with Pt
VIIIA, how their property interests should be arranged between them during the
continuance of their marriage, the application of these principles accommodates
that fact. And if the parties to a marriage have not expressly considered
whether or to what extent there is or should be some different arrangement of
their property interests in their individual or commonly held assets while the
marriage continues, the application of these principles again accommodates that
fact. These principles do so by recognising the force of the stated and
unstated assumptions between the parties to a marriage that the arrangement of
property interests, whatever they are, is sufficient for the purposes of that
husband and wife during the continuance of their marriage. The fundamental
propositions that have been identified require that a court have a principled
reason for interfering with the existing legal and equitable interests of the
parties to the marriage and whatever may have been their stated or unstated
assumptions and agreements about property interests during the continuance of
the marriage.
In
many cases where an application is made for a property settlement order, the
just and equitable requirement is readily satisfied by observing that, as the
result of a choice made by one or both of the parties, the husband and wife are
no longer living in a marital relationship. It will be just and equitable to
make a property settlement order in such a case because there is not and will
not thereafter be the common use of property by the husband and wife. No less
importantly, the express and implicit assumptions that underpinned the existing
property arrangements have been brought to an end by the voluntary severance of
the mutuality of the marital relationship. That is, any express or implicit
assumption that the parties may have made to the effect that existing
arrangements of marital property interests were sufficient or appropriate
during the continuance of their marital relationship is brought to an end with
the ending of the marital relationship. And the assumption that any adjustment
to those interests could be effected consensually as needed or desired is also
brought to an end. Hence it will be just and equitable that the court make a
property settlement order. What order, if any, should then be made is
determined by applying s 79(4).
By
contrast, the bare fact of separation, when involuntary, does not show that it
is just and equitable to make a property settlement order. It does not permit a
court to disregard the rights and interests of the parties in their respective
property and to make whatever order may seem to it to be fair and just.
When,
as in this case, the separation of the parties is not voluntary, the bare fact
of separation does not demonstrate that the husband and wife have any reason to
alter the property interests that lie behind whatever common use they may have
made of assets when they were able to and did live together. Common use of some
assets may very well continue, as it did here when the husband made provision
for the wife's care and accommodation. Past arrangements that the parties have
made about their property interests on the assumption, expressed or implicit,
that those arrangements were sufficient and appropriate during the continuance
of their marriage are not necessarily falsified. If both parties are competent,
it can still be assumed that any necessary or desirable adjustment can be made
to their property interests consensually. And if one of the parties has become
incompetent it is not to be assumed that the other party lacks the will and
ability to make those necessary or desirable adjustments.
Contrary
to the submissions of the husband in this Court, there may be circumstances
other than a voluntary separation of the parties marking the breakdown of their
marital relationship in which a court may be satisfied that it is just and
equitable to make a property settlement order. For example, demonstration of
one party's unmet needs that cannot be answered by a maintenance order may well
warrant the conclusion that it is just and equitable to make a property
settlement order. It may be that there are circumstances other than need.
As
has already been emphasised, nothing in these reasons should be understood as
attempting to chart the metes and bounds of what is "just and
equitable". Nor is anything that is said in these reasons intended to deny
the importance of considering any countervailing factors which may
bear upon what, in all the circumstances of the particular case, is just and
equitable.”
A US case
There
have not been any cases in Australia concerning what might occur with the
ownership or possession of embryos, eggs or sperm between parties, but
certainly enquiries have been made.
There have been similar cases in the United States. An example of such a case was Szafanski v Dunston (2013)[40],
a decision of the Appellate Court of Illinois, First District, Second
Division. It was a dispute between Jacob
Szafanski and Carla Dunstan over who had the right to use embryos created with
Mr Szafanski’s sperm and Ms Dunstan’s eggs.
Ms Dunstan was successful. Ms
Dunstan had been diagnosed with non Hodgkins lymphoma and was informed that
chemotherapy treatment would likely cause the loss of her fertility. She asked Mr Szafanski, with
whom she was in a relationship, if he would donate his sperm for the purpose of
creating pre-embryos with her eggs and he agreed to do so.
In
2010 when the embryos were created Mr Szafanski and Ms Dunstan signed a form
entitled “Informed Consent for Assisted
Reproduction”. Besides outlining the risks involved with IVF the consent
stated that “No use can be made of these
embryos without the consent of both parties (if applicable) … in the event of
divorce or dissolution of the marriage or partnership, (the hospital) will
abide by the terms of the court to create a settlement agreement regarding the
ownership and/or other rights to the embryos.”
The
informed consent also contained the following disclaimer:
“The
law regarding invitro fertilisation, embryo cryo preservation, subsequent embryo thaw and use, and parent-child
status of any resulting child (ren), is or may be,
unsettled in the state in which either of the patient, spouse, partner or any
current or future donor lives,
or in Illinois, the State in which the (hospital) is located. [The hospital] does not provide legal advice, and
should not rely on [the hospital] to give you
any legal advice. You should consider
consulting with a lawyer who is experienced
in the areas of reproductive law and embryo cryopreservation as well as the disposition of embryos, including any
questions or concerns about the present or future
status of your embryos, you individual or joint access to them, your individual
or joint parental status as to
any resulting child, or about any other aspect of this consent and agreement.”
On
the day of their meeting at the hospital, the couple also met with an
experienced fertility lawyer to discuss the legal implications of creating the
embryos. She presented them with two
possible arrangements: a co-parent agreement or a sperm donor agreement. Mr Szafanski opted for the former the
co-parent agreement stated it was to memorialise the parties’ intent and
agreement they shall both be established as the legal co-parents of the
child. They would attempt to participate
in at least one IVF cycle and then Mr Szafanski “agrees to undertake all legal, custodial and other obligations to the
child regardless of any change of circumstances between the parties”. The agreement also provided that “any eggs retrieved and cryopreserved as a
result of this IVF retrievable shall be under [Ms Dunstan’s] sole control”
and that “should the intended parents
separate, [Ms Dunstan] will control the disposition of the pre-embryos.”
The
agreement also provided :
“Jacob
acknowledges and agrees that Karla is likely to be unable to create new healthy embryos subsequent to the
chemotherapy regiment she will undergo, and Jacob
specifically agrees that Karla should have the opportunity to use such embryos to have a child.”
The
parties never signed the co-parent agreement but nevertheless proceeded.
The
parties then separated and Mr Szafanski then sought orders to stop Ms Dunstan
being able to use the embryos.
There
were then three ways that the court could resolve the matter:
1. A
contractual approach;
2. Contemporaneous
mutual consent approach; and/or
3. A
balancing approach.
The
court noted that in the United States courts will enforce contracts governing
the disposition of pre-embryos which were entered into at the time of IVF so
long as they do not violate public policy:
“The
benefits of a contractual approach are that it encourages parties to enter into
agreements that will avoid
future costs of litigation and that it removes State and Court involvement in private family
decisions.”[41]
I
note that the contractual approach would not be available in Australia. The
courts here have been reluctant to take an activist approach. Not surprisingly there were many criticisms of
the contractual approach including that such agreements may not be within the
public interest.
The
second approach was that no embryos should be used by either partner, donated
to another patient, used in research, or destroyed without the contemporaneous
mutual consent of the couple that created the embryo. One of the criticisms of that approach is the
obvious one:
“This
approach strikes us as being totally unrealistic. If the parties could reach an agreement, they would not be in
court.”
The
third approach was the balancing approach which was to enforce contracts
between parties at least to a point then balance their interests in the absence
of any agreement.
Not
surprisingly each of the parties sought to take an approach that helped their
case.
The
approach taken by the Illinois Court was to rely on contract and in particular[42]:
“We
believe that honoring parties’ agreements properly allows them, rather than the
courts, to make their own
reproductive choices while also providing a measure of certainty necessary to proper family planning. We also believe that honoring such agreements will promote serious discussions
between the parties prior to participating
in invitro fertilisation regarding their desires, intentions, and concerns… although we acknowledge the concern
that individuals may change their minds
regarding parenthood during the process of invitro fertilisation, we note that this concern can be adequately addressed
in a contract and should be discussed in advance
of the procedure. We do not believe,
however, that such a concern should allow
one party’s indecisiveness to plague a process, fraught with emotions and lifelong repercussions, with
uncertainty at another’s expense.”
The
court also hold that where there wasn’t an advance agreement then the relative
interests of the parties in using and not using the pre-embryos must be
weighed.
As
I said these agreements would unlikely be binding in Australia.
Conclusion
It
is only a question of time before there is litigation between former spouses
about the ownership of embryos. How that
litigation will end up is anyone’s guess.
If
there are to be deals done between former spouses regarding embryos, then the
following issues may also need to be traversed:
·
Parenting presumptions
·
The impact on any other siblings and
whether a child born through this embryo is to be treated differently;
·
Mandatory licencing requirements, such
as the Assisted Reproductive Technology
Act 2007 (NSW);
·
Navigating provisions such as s 32 of
the Human Tissue Act 1983 (NSW) that
ordinarily prohibits the supply of tissue for consideration and both
Commonwealth and State or Territory human cloning legislation namely s 21 of
the Prohibition of Human Cloning for
Reproduction Act 2002 (Cth) and, as an example the Human Cloning for Reproduction and Other Prohibited Practices Act 2003
(NSW) s.16.
Stephen Page
Harrington
Family Lawyers
6 June 2014
surrogacyandadoption.blogspot.com.au
[1]
Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an
accredited family law specialist He was admitted as a solicitor in 1987, has
been an accredited family law specialist since 1996 and is author of the
Australian surrogacy and Adoption Blog.
[2]
National Health and Medical Research Council, Ethical Guidelines in the use of Assisted Reproductive Technology in
Clinical Practice and Research (2007).
[3]
S.17(4).
[4]
S.19.
[5]
S.22.
[6]
S.17(1)(d).
[7]
S.20.
[8]
S.20(3).
[9]
S.22(5).
[10]
[2013] FamCA 430.
[11]
[1908] HCA 45;(1908) 6 CLR 406.
[12]
[2000] WASC 146; (2000) 22 WAR331.
[13]
At [23] – [24].
[14]
[2008] WASC 262.
[15]
[2009]EWCA Civ 37; [2010] QB 1.
[16]
At [45].
[17]
At [49].
[18]
[2010]
QSC 118; [2011] 2 Qd R 207.
[19] at [33].
[20] [2011]NSWSC 478.
[21] At [82] – [85].
[22] [2012] SASC177.
[23] At [58].
[24] [87] – [91].
[25] At [60].
[26] Re H,
AE(3)[2013] SASC 116.
[27] [2012]SaCA 653.
[28] At [14].
[29] [2013]HCA 56.
[30]
At [1].
[31]
At [3].
[32]
At [121] – [124].
[33] An offence for
intentionally giving or offering valuable consideration for the supply of a
human egg, human sperm or a human embryo.
[34] At [34].
[35]
At [28]
[36] LWV&Anor v
LMH [2012] QChC 026.
[37]
[2012] HCA 52
[38]
French CJ, Hayne, Kiefel, Bell JJ
[39]
At [35]-[46]
[40] 993 N.E.2d 502
(2013).
[41]
[18]
[42]
At [41].
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