Yes, we bet you didn’t see that coming!
An interesting phenomenon that has arisen for our estate solicitors is testators wanting to include specific provisions in their Will dealing with either their eggs or sperm following death. Whether this involves the removal after death for fertilisation purposes by their spouse, donation or alternatively in respect of In Vitro Fertilisation (IVF) organisations holding their samples. It is especially more common amongst the LGBTQI community and those who are in the process of IVF treatment.
Whatever the case is, usually issues arise out of the most tragic of circumstances. That’s not to mention the legal nightmare with either religious or squabbling families, differing opinions, community standards and expectations and morals.
Removal of Material from Deceased
In Queensland, there are divergent authorities on the power to order removal of sperm post death.
On the one hand, the matter of Re Gray tells us that the Court has no power to make an order for removal at all. On the other hand, the matter of Re Denman tells us there is an inherent power of the Court to permit the making of an order which is in the nature of an interlocutory order, pending determination of whether there is any jurisdiction for the Court to make orders as to future use.
Interference with a Corpse
Previously, Applications have been made to the Courts, which have indicated that interference with a corpse is contrary to s 236 of the Criminal Code 1899 (Qld). Despite this, the Supreme Court of Queensland has largely followed the matter of Re Denman where Justice Atkinson has given strong consideration that the removal of sperm would not contravene this section where the deceased had expressed a desire to have children with his partner.
Transplantation and Anatomy Act 1979 (Qld) (TAA)
The TAA provides, inter alia, for a process of authorisation for the removal of tissue after a person’s death and for transplanting it to the body of a living person or for other therapeutic, medical or scientific purpose.
Justice Brown in the matter of Re Cresswell decided that “Medical grounds” and “therapeutic purposes” or “medical purposes” is broad enough to encompass the removal of sperm for reproductive treatment through IVF, as supported in Re Estate of Edwards and Y v Austin Health, however, an authority for removal under the TAA is still necessary.
Justice Brown further noted her agreeance with Justice Edelman in Ex parte C, that the statutory regime in Queensland, like the statutory regime in Western Australia, does not require parties to apply to the Supreme Court of Queensland for a court order for removal of sperm. This is because the TAA provides a regime for a designated officer and/or the Coroner, in the case of a reportable death, to provide such authorisation in accordance with the statutory regime. In saying this, it was expressly noted that the question of removal is different from the question of the determination of the use of the sperm, which is outside the statutory regime under the TAA.
Is the sperm capable of being possessed as property?
In Queensland, unlike some other States, there is absolutely no legislation dealing with the use of removed sperm and/or eggs in circumstances where the donor is deceased.
The absence of jurisdiction has said to call into question considerations of long-established principles at common law that there can be no property in a corpse, having regard to two exceptions:
firstly, a personal representatives right to custody and possession of the body until disposed of; and
secondly, possession for the purposes of those who work on and transform a human body.
In Australia, there have been several judicial decisions which have recognised that sperm can be considered property in specific contexts; specifically, in respect to human body parts and/or biological material separated from and/or produced by the body, both during life and after. There are qualification to this, however.
In Re Cresswell, Justice Brown considered the law as it is applied in Queensland and the common law as follows:
Removal of sperm from a deceased person for use in assisted reproductive treatment is for a “medical purpose” under s 22 of the TAA;
The TAA provides for a statutory regime for the removal of sperm which does not require parties to come before the Court for authorisation to permit removal of the sperm, but rather requires the authorisation of the designated officer and in some cases, the Coroner to be obtained as mentioned earlier;
There is no common law principle which empowers a Court to order removal of a deceased’s sperm, as the sperm while it remains a part of the human body is not recognised as “property”. This is provided always that if the TAA were satisfied and the removal was to occur, there is a possibility based on Ex parte M and S v Minister for Health (WA) that, given the sperm to be removed is capable of being recognised as property, it may be property such that a court may have jurisdiction to make a preservation of property order;
Sperm removed from the deceased is capable of constituting property, where work and skill is exercised in relation to the removal, separation and preservation of the sperm;
While there is some support for the notion that sperm or tissue separated from the human body is a thing which is property capable of ownership, without the exercise of any such work or skill, those cases are limited to where the separation occurred while the donor was living and the donor consented to the removal of the sperm;
The sperm of a deceased that is not removed while living is not capable of being property cannot form part of the assets of an estate upon death;
Generally, the person entitled to possession of any sperm removed and preserved will be the party who has exercised the work and skill to extract and preserve the sperm or the principal for whom they act.
What is fundamental is the decision of Re Cresswell, where sperm after being lawfully separation from a human body and preserved using “work and skill” was considered to constitute ‘property’ capable of possession.
Generally, the Courts have decided that the consent and wishes of the deceased must be expressly considered by the Court when making a determination as to use of the sperm or eggs.
At Richard Hoare & Co Solicitors, our estate team understand the complexities of this area of law and why it is critical for some people to include express provisions in their last Will dealing with their sperm or eggs. We also understand the process for you to follow where a loved one has passed aware and questions over harvesting and using sperm and/or eggs arise.
Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
© Scott A. Green, Associate Solicitor