Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 22 June 2019.
Greg and Sophie were due to undergo in vitro fertilisation (IVF) treatment on 19 June 2019. On the morning of their final IVF appointment, Greg was involved in a motor vehicle accident and conveyed to hospital. Unfortunately, he suffered a stroke in the intensive care unit and was pronounced dead later that evening.
Devastated by her husband’s death, Sophie made an urgent application to the Supreme Court of NSW seeking authorisation for Greg’s sperm to be lawfully extracted and stored for later use. Although Greg had not provided written consent prior to his death for the removal of his sperm, the Court granted the extraction and ordered that the sperm be cryopreserved and stored at the hospital.
Sophie then made a further application seeking possession of the stored sperm to enable her to continue with IVF treatment.
Prior to determining whether Sophie had possession of the sperm, the Court found that the original court order granting sperm extraction and storage was made in error as it contravened section 36 of the Human Tissue Act 1983 (NSW). Section 36 provides that a person cannot remove, store and use tissue, including sperm, from a living or deceased person without that person’s prior written consent.
Nevertheless, the extraction of Greg’s sperm was still made subject to a lawful court order and so the Court went on to consider whether the sperm was capable of possession.
The Court held that Sophie held a proprietary right over her late husband’s sperm on the basis that it acquired characteristics capable of possession once work and skill, in the form of cryopreservation, had been applied to it.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
