The Sanity Check
35 A legitimate check for a court to use, in deciding whether an interpretation of a statute arrived at by grammatical analysis is indeed the correct interpretation, is to consider whether that interpretation produces practical results which are sensible, rather than:
"… 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure'" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ."
36 Jordan CJ expressed the same notion by saying "a court is entitled to pay the legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense": (Hall v Jones (1942) 42 SR (NSW) 203 at 208). From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.
37 One possible anomaly which arises from the construction that I prefer is that it will result, in certain circumstances, in a child having no father at all. If a woman has ova removed from her and fertilised with sperm obtained from a man who is her husband at the time the sperm is obtained, and the resulting embryos are implanted in the woman after that man has ceased to be her husband (whether through death, or divorce, or when the marriage is a marriage within the extended meaning arising from section 14(6) by the relationship simply ending), and if at the time the embryo is implanted section 14(1)(a) cannot operate, either because the woman is not at that time married or because her husband has not consented to the procedure, and if none of the rebuttable presumptions of paternity apply, the resulting child will have no father.
38 However, even if section 14(2) is construed so that whether the sperm donor is the husband of the woman in question is determined at the time the sperm is obtained from the man, there will still be children without fathers. It does not seem to me that the fact that the construction that I prefer will result in there being a larger number of children without fathers, than would be the case if the contrary construction of section 14(2) were adopted, is an anomaly of sufficient seriousness to justify rejection of the literal construction.
39 One can envisage a variant on the facts of the present case, where the construction of section 14(2) opposite to the one which seems to me to be preferable, could produce anomalous results. Consider the situation of a young woman, engaged to be married, but not living with her fiancé in circumstances which would deem him to be her husband pursuant to section 14(6). She is diagnosed as suffering from an illness, the treatment of which is likely to render her sterile. She and her fiancé set about having ova removed, fertilised with the fiancé's semen, and stored. Her treatment is successful; she and her fiancé marry, and use the stored embryos to produce a family. On the construction of section 14(2) which requires a man from whom sperm is obtained to be the husband of the relevant woman as at the time the sperm is obtained, this man would be irrebuttably presumed not to be the father of the children his wife had produced.
40 It is true that section 14(1) would produce a contrary irrebuttable presumption, if the man had consented to the fertilisation procedure, and that section 17(1) would leave the way open for a court to resolve the conflict between the two contradicting irrebuttable presumptions by deciding that the man was the father of the children. However, it is undesirable that it should be necessary for parties to go to court to decide something as basic as whether a person is, or is not, the father of their child. There are many situations (from administration of deceased estates, to the ordinary practicalities of bringing up and educating a child) where one needs to know who is the father of the child, without having to go to court to find out.
41 The hypothetical scenario I have just been considering is, as I have said, one which arises on the opposite construction of section 14(2) to the one that seems to me to be preferable. The practical difficulties which arise on that scenario are ones which provide some slight measure of comfort in adhering to the construction which strikes me as the preferable one.
42 There is another way in which the construction of section 14(2) opposite to the one which seems to me to be preferable, could produce anomalous results. Consider the situation of a woman who has ova removed, and fertilised using sperm obtained from a man who is, at the time of obtaining the sperm, her husband. If the construction contrary to the one which seems to me to be correct applies, the irrebuttable presumption arising from section 14(2) does not apply to any child born as a result of implantation of the embryos so obtained. If the woman in question were later to marry, and were to have the embryos implanted with the consent of her new husband, section 14(1) would operate, so that the new husband would be irrebuttably presumed to be the father of the resulting child. If, however, the embryos were later to be implanted in her without the consent of her then husband, the presumption under section 14(1) would not operate. There would be a rebuttable presumption arising under section 9 that, because the child was born during a time the woman was married, the then husband was presumed to be the father of the child. However, the then husband could, no doubt, readily rebut that presumption. The way would then be open for a court to find that it was the sperm donor who was the father of the child. Further, this could happen even if the implantation occurred years after the embryo was created, and even if the implantation occurred notwithstanding the steadfast opposition of the sperm donor. It seems to me harsh that a woman could impose the financial responsibilities of parenthood on her ex-husband in these circumstances. By contrast, on the construction which seems to me to be the preferable one, in the scenario I am now considering, the ex-husband would irrebuttably be presumed not to be the father of the child. If the woman were to have the child, it would be on the basis that she was not able to require any financial support for the child, from her ex-husband. In this very difficult area of the law, that strikes me as a fairer outcome. Thus, this scenario also provides a slight measure of comfort in adhering to the construction of section 14(2) which I have adopted.