GLS -v- RUSSELL-WEISZ [2018] WASC 79 (19 March 2018)

2 Directions have been issued by the Chief Executive Officer of the Department of Health (the CEO),[1] pursuant to the HRT Act relating to various matters addressed by that Act, including artificial insemination (AI) and in vitro fertilisation (IVF). Clause 8.9 of those directions prohibits any holder of a licence granted under the HRT Act from knowingly using or authorising the using of gametes (which includes sperm and eggs) in an artificial fertilisation procedure after the death of the gamete provider. Because of this provision the plaintiff is currently unable to use the sperm extracted from Gary's body in order to conceive a baby in Western Australia. However, there is no equivalent prohibition upon the posthumous use of gametes in the Australian Capital Territory (ACT), and a clinic in that jurisdiction is prepared to use the sperm extracted from Gary in IVF procedures conducted in the ACT in an endeavour to impregnate the plaintiff.

3 However, the Directions to which I have referred provide that the holder of a licence issued under the HRT Act must not permit or facilitate the export from the State of gametes for use in an artificial fertilisation procedure without the prior approval of the Reproductive Technology Council of Western Australia (RTC) created pursuant to provisions of the HRT Act 'where donation of human reproductive material has been involved'.[2]

4 The plaintiff applied to the RTC for permission to export the sperm extracted from Gary's body to the ACT in order that it might be used in the IVF procedure to which I have referred. The RTC refused to grant approval for the export of the sperm.

5 The plaintiff has commenced proceedings seeking declaratory relief to give effect to the following propositions:

1. she has the right to direct the clinic storing the sperm extracted from Gary's body to transfer that sperm from Western Australia to the ACT;
2. on the proper construction of the Directions, the approval of the RTC is not required to export the sperm from Western Australia;
3. if, on their proper construction, the Directions do require the approval of the RTC before the sperm may be exported from Western Australia, the Directions are, to that extent, invalid or should be read down so that they do not require the approval of the RTC.

6 For the reasons which follow I have concluded that the plaintiff does have the right to direct the clinic storing the sperm extracted from Gary's body to transfer that sperm from Western Australia to the ACT. I have also concluded that the Directions, on their proper construction, do not require the approval of the RTC before the sperm may be exported. It follows that it is neither necessary nor appropriate to consider whether, if the Directions were to be otherwise construed, they are invalid or should be read down.

7 Although there is an issue of combined fact and law as to whether the plaintiff was the de facto partner of Gary at the time of his death - an issue which I will address below - the evidence relating to that issue was not contentious and was received in the form of affidavits which were tendered without objection. The deponents of the affidavits were not crossexamined.

8 For reasons which will appear, it is desirable to address the affidavits, and their salient features, in the order in which they were filed.

9 The plaintiff's first affidavit establishes the following matters.

10 The plaintiff is currently 42 years of age. When Gary died on 2 February 2016, he was 53 years old. Because of her age, the plaintiff is anxious to resolve issues relating to her capacity to use the sperm extracted from Gary's body as soon as possible. That reasonable desire must, however, be viewed in a context in which, for reasons which she has explained, the plaintiff did not initiate the steps which have resulted in these proceedings until more than a year after Gary's death, and did not commence these proceedings until almost two years after his death. However, as no issue has been taken in relation to delay, it is unnecessary to say any more about timing issues.

11 Letters of Administration were issued by this court in respect of Gary's estate to the plaintiff and to Gary's son, JDT, who is the second defendant. JDT was served with notice of these proceedings, but has not entered an appearance, or taken any part.[3]

12 The plaintiff met Gary in November 2009 when she was about 34 years of age and Gary was about 47 years of age. Neither of them had been previously married, although Gary had children from a previous relationship. Gary was in occasional employment and the plaintiff was in parttime employment, with the consequence that each was of limited means.

13 The plaintiff and Gary dated each other exclusively, and in about April 2010 commenced living together. They commenced a sexual relationship within six months of meeting and continued to have sexual relations until Gary's death.

14 In March 2011, Gary bought the plaintiff a sixweek old puppy. They discussed the acquisition of the puppy as a good way of testing how they would get on when they eventually had children. From at least this time, they openly discussed their future together and developed plans to eventually marry and have children. However, because of their limited financial means, and the insecurity of their accommodation, their ambition to have children was deferred.

15 In the middle of 2012 Gary proposed marriage to the plaintiff. She accepted his proposal but on the basis that they would not marry until they had their own home.

16 In about October 2014, Gary gave the plaintiff some pewter baby trinkets to use when they had their first child. Around the same time he said to the plaintiff words to the effect:

You should have my sperm frozen. That way if anything happens to me you can still have our children.

17 According to the plaintiff, Gary had a fear of dying young because his father and his uncle had died at relatively young ages. Because she did not share his fear of him dying young, she did not consider that storage of his sperm was necessary - particularly at a time when they would have had financial difficulty covering the associated costs.

18 In about September 2015, Gary again raised the topic of having children with the plaintiff, and gave her more pewter baby trinkets for their first child, and a small box set of children's books related to 'The Wind in the Willows' story, and a glass figurine set of a husband and wife on their wedding day - similar to those often seen decorating the top of a wedding cake.

19 At the time of receiving these gifts in September 2015, the plaintiff was in the process of applying for a home through the Keystart home loan programme. She told Gary that she wanted to wait until the Keystart process had been completed and the couple had their own home before starting a family. The couple discussed the plans they had for children in the future, and the most desirable location for them to raise a family. In December 2015 the plaintiff and Gary were notified that the Keystart application had been approved, and settlement of the plaintiff's purchase of a twobedroom, twobathroom unit in a suburb of Perth was completed on 29 February 2016 (about a month after Gary died). The plaintiff considers that she now has the accommodation and financial resources required to successfully raise a child, with the assistance of members of her family who have pledged their support.

Gary's death and the posthumous extraction of sperm

20 On 27 January 2016 Gary suffered cardiac arrest in a shopping mall opposite the place where the plaintiff was working. He was unconscious by the time he was admitted to Royal Perth Hospital and did not regain consciousness before being pronounced brain dead by clinical staff at the hospital on 2 February 2016. Staff at Royal Perth Hospital listed the plaintiff as Gary's next of kin, and the plaintiff was engaged, with other members of Gary's family, in the discussions with hospital staff with respect to organ donation and the discontinuance of life support. In the result, after a number of discussions, it was agreed by all, including the plaintiff, that life support would be discontinued and that Gary would be allowed to die.

21 Gary was moved to the mortuary at Royal Perth Hospital at about 2.00 pm on 3 February 2016. One of the staff at the hospital alerted the plaintiff to the possibility of Gary's sperm being extracted after his death. The following morning, the plaintiff returned to Royal Perth Hospital in order to ascertain what she needed to do in order to cause Gary's sperm to be extracted from his body. She eventually made contact with a medical practitioner working with a fertility centre in a suburb of Perth who indicated that he was qualified and available to undertake the procedure. Later that day, the plaintiff met with the medical practitioner and a senior member of the medical staff at Royal Perth Hospital, and it was agreed that the process would be undertaken that day. After the process was undertaken, the plaintiff was advised by the medical practitioner that the sperm extracted from Gary's body appeared to be viable, and capable of sustaining conception.

22 The straws of sperm were transported from Royal Perth Hospital to a fertility clinic associated with the medical practitioner and have been held in storage cryopreserved frozen since then. The plaintiff has paid all the storage fees charged by the fertility centre.

23 In December 2016, Gary's son, JDT, signed a statutory declaration in which he consented to the plaintiff having 'all of the rights and use of Gary's gammet's [sic]' upon the proviso that the plaintiff will not contact him or his immediate family, with the exception of his mother, in relation to any child that might result from the use of Gary's gametes, and on the further condition that the plaintiff not make any request for any financial, personal or emotional assistance.

24 The plaintiff has attached to her affidavit statements by her mother and a friend of Gary's corroborating her evidence to the effect that Gary had said, on occasions, that his sperm should be extracted and frozen in order that it might be used in case anything happened to him. Both also corroborate the plaintiff's evidence to the effect that she and Gary regularly discussed having children at some time in the future. A statement from the plaintiff's sister to the same effect is also attached to the plaintiff's affidavit.

25 In June 2016, and again in July and August 2017, the plaintiff undertook a number of medical tests with respect to her fertility, and with respect to her capacity to conceive using Gary's sperm in an IVF procedure.

26 On 5 July 2017, solicitors acting on behalf of the plaintiff wrote to the RTC advising that the fertility centre storing the sperm extracted from Gary had been asked to export the sperm to a fertility clinic in Canberra, in order that it might be used to impregnate the plaintiff in Canberra. In the letter, the solicitors requested the approval of the RTC for the export of the sperm pursuant to cl 6.5 and cl 6.6 of the Directions, while at the same time asserting that those clauses of the Directions were not engaged because the proposed export did not involve human reproductive material which had been donated.

27 On 25 July 2017, the executive officer of the RTC responded to the plaintiff's solicitors requesting further information in support of what the RTC took to be an application under cl 6.5 and cl 6.6 of the Directions. That information was supplied under cover of a letter from the plaintiff's solicitors dated 15 August 2017, which again asserted that cl 6.5 had no application to the plaintiff's circumstances because her case did not involve donated human gametes.

28 On 6 October 2017, the executive officer of the RTC wrote to the plaintiff's solicitors advising that in the view of the RTC, its approval was required before the sperm could be removed from Western Australia. The Executive Officer further advised that the RTC had decided not to approve the export of gametes for a purpose that would be prohibited in Western Australia being, relevantly, the purpose of using Gary's gametes posthumously contrary to cl 8.9 of the Directions. Other reasons for refusing approval were given in the letter but, as there is no challenge to the decision of the RTC other than the assertion that its approval is not required, it is unnecessary to give any further consideration to the reasons given by the RTC for refusing approval.

29 An affidavit was tendered on behalf of the defendants attaching copies of medical records and notes made in respect of Gary's admission to Royal Perth Hospital from 27 January 2016, to the extent that they are relevant to the issues in these proceedings. A note made by a social worker on 28 January 2016 records:

Partner [GLS] reports being in a relationship with Gary for six years, however they haven't lived together for two and a half years. Gary consumes alcohol excessively which has created relationship difficulties with his family ... Gary is homeless and tends to sleep on people's couches. Unemployed.

30 At various other points in the notes the plaintiff is described as Gary's 'partner',[4] at another point as Gary's 'girlfriend',[5] and at other points by reference to the acronym 'NOK' - an abbreviation for 'next of kin'.[6] As I have noted, the hospital recorded the plaintiff as Gary's next of kin in its admission records.

31 The notes also include a note made by Dr Mark Platell on 4 February 2016, following Gary's death. The note is in the following terms:[7]

Spoke with [GLS] who identified herself as NOK and who has lived in a de facto relationship with deceased for six years. Notes verify this NOK. Their plans were to move into a new house (happening), get his health right and then to start a family. She feels obliged and honoured to have his children (hence request for sperm removal).

I have authority to approve removal under Human Tissue and Transplant Act 1982 section 22.

Sperm removal approved. Discussed with Simon Turner (Doctor who is doing the extraction). Sperm will be stored at his IVF centre but can't be released until he (and centre) receive court approval to use the sperm.

Explained to [GLS] we can approve harvesting of sperm but no use of it beyond that. She agreed and stated that she needs to sort out funeral and new house first.

Plan - approved for removal

M Platell 4/2/16 14:30

NB: Lawyers have been consulted by [GLS] and by RPH. Advice was we can gather the sperm, but steps beyond that require further consideration.

32 The plaintiff provided a further affidavit after being shown the notes made at Royal Perth Hospital following Gary's admission. This affidavit establishes the following matters.

33 The plaintiff and Gary commenced living together in about April 2010 in a unit in Rokeby Road, Subiaco. They lived together at that unit until November 2012 when the lease ended and they moved out. The couple then moved to a small house in Daglish where they lived together for about eight months. However, there was then a dispute with the manager of that property relating to the payment of rent which resulted in a court order terminating the lease and requiring Gary and the plaintiff to vacate the premises in about June 2013. Gary and the plaintiff found it extremely difficult to find alternative accommodation as a result of excessive demand in the Perth rental market, and a requirement that applications to rent property be accompanied by substantial deposits which were beyond their means. The fact that the couple had a dog also created difficulties in locating appropriate properties.

34 Because of these difficulties, Gary and the plaintiff were forced to live apart until appropriate accommodation could be found. Their furniture and belongings were placed into storage and the plaintiff moved in with her friend and her friend's children in a small unit. Because of the small size of the unit there was not enough room for Gary. There was also friction between Gary and the plaintiff's friend's husband.

35 Gary was unemployed for part of this period and could only afford to stay in hostels. From time to time the plaintiff would provide him with funds to pay the hostel fees. During this time the plaintiff and Gary communicated daily and met at least three to four times per week to go to the movies, the beach, the park or sometimes stay overnight at a hotel. The plaintiff would cook Gary meals and take him food and collect his clothing and do his laundry. The plaintiff and Gary maintained a sexual relationship over this period. Attached to the plaintiff's second affidavit is a letter from the friend with whom she was staying at this time confirming these matters.

36 After staying in various hostels in the Perth area, Gary's financial position deteriorated to the point where he began living in his car. Nevertheless, the plaintiff and he maintained their relationship.

37 In March 2014, the plaintiff was obliged to leave her friend's house because her friend's husband returned suddenly. The plaintiff then moved to a rented room in Tuart Hill which was just big enough for her and the dog.

38 In April 2014, the plaintiff found Gary a room to rent at a house in Westminster. Because pets were not allowed in that house, the plaintiff remained living in Tuart Hill with the dog which she and Gary shared, although she often spent nights with Gary at the Westminster house.

39 After a couple of months, the room in the Westminster house was no longer available for Gary, who resumed living in his car until hostel accommodation was again obtained for him. He stayed in the hostel for about five months until about March 2015. During this period, in December 2014 the plaintiff was required to vacate the room at Tuart Hill which she had been living in. She managed to rent a room at a house in Claremont from a friend, although the friend did not want Gary staying in the house as well. During this time the plaintiff continued to advance funds to Gary to help him make ends meet.

40 In about June 2015, Gary was able to rent a room at a house in Bayswater. The plaintiff visited Gary at the house and would stay overnight, but she was unable to take their dog to the house, as it was not very secure. Around this time Gary's daughter planned to come to Perth from where she was living in the country in order to spend a couple of days with Gary. The plaintiff booked and paid for Gary and his daughter to stay at a hotel in West Perth so that they could be together during this time.

41 From the latter half of 2015 until Gary's death in early 2016, Gary remained living at the property in Bayswater and the plaintiff continued to live in Claremont. During this time, as I have noted, Gary and the plaintiff entered the Keystart programme with a view to obtaining a house in which they could live together.

42 Shortly before Gary's death, the plaintiff helped Gary pay to travel to Karratha by bus in an attempt to obtain employment. Copies of receipts relating to the plaintiff's financial contribution to his travel are attached to her second affidavit. Shortly after Gary returned from Karratha he suffered the cardiac arrest which led to his death.

43 The plaintiff borrowed $6,000 from her mother to cover the costs of Gary's funeral.

44 The proceedings were commenced by originating summons seeking various forms of declaratory relief. The summons does not specify the grounds upon which the relief was sought, although the summons was supported by the plaintiff's first affidavit. It is unnecessary to particularise the relief sought, as the parties have agreed that the court should determine the three issues set out below, after which appropriate relief can be fashioned to take account of the court's determinations.

45 The parties are agreed that the plaintiff's claims can be sufficiently and adequately resolved if the court determines, on the basis of the evidence to which I have referred, the following questions:

1. Subject to otherwise complying with valid laws of the Commonwealth, the States and the Territories, does the Plaintiff have the right to direct the Hollywood Fertility Clinic ('the licensee') that the spermatozoa (the Gametes) extracted posthumously from the body of the late Gary ... on 4 February 2016 be transferred from Western Australia to the Australian Capital Territory?

1. If 'yes' to Question 1, on their proper construction, do the Directions made under the Human Reproductive Technology Act 1991 (WA) ('the HRT Act') published in the Government Gazette (No 201, 30 November 2004, pages 5417-5478) (Directions), require the approval of the Western Australian Reproductive Technology Council before the sperm may be exported from Western Australia, and, in particular are the Gametes 'donated gametes' within the meaning of clause 6.5 and 6.6 of the Directions?

1. If 'yes' to Question 2, are clause 6.5 and 6.6 of the Directions (or s 18 and 31 of the HRT Act, pursuant to which they were made), in requiring the approval of the Council for export, invalid (or to be read down) in so far as they would apply to require approval for export at the direction of the Plaintiff:

(a) On the basis that they are inconsistent with s 22 of the Human Tissue and Transplant Act 1982 (WA)?

(b) Pursuant to s 109 of the Commonwealth Constitution (Constitution) on the basis that they are inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth)?

(c) Pursuant to s 109 of the Constitution on the basis that they are inconsistent with s 69 of the Australian Capital Territory (Self Government) Act 1988, or alternatively, contrary to s 92 of the Constitution?

(d) On the basis that they are contrary to s 118 of the Constitution?

46 The parties are agreed that Question 1 should be answered affirmatively. Accordingly, my reasons for concluding that the parties are correct in this respect may be expressed with relative brevity. However, it will be appropriate to deal rather more fully with those aspects of Question 1 which also bear upon Questions 2 and 3.

47 If Question 1 is answered affirmatively, and if Question 2 is answered negatively, the plaintiff must succeed in her claim, and the parties are agreed that it is neither necessary nor appropriate to address Question 3.[8]

48 If Question 2 is answered affirmatively, the outcome of the case will depend upon the outcome of Question 3. In that circumstance, if Question 3 is answered affirmatively, the plaintiff is entitled to the relief that she seeks, whereas if Question 3 is answered negatively, the plaintiff's claim must fail.

49 The issues framed by the parties must be assessed in the context of the legislative regime created by two Western Australian statutes - the HTT Act and the HRT Act.

50 The long title of the HTT Act describes the subjects it addresses as 'the removal of human tissues for transplantation, other therapeutic purposes, or medical or scientific purposes'. Part II of the HTT Act is headed 'Donations of tissue by living persons'. Although 'tissue' is broadly defined by s 3 of the HTT Act to include 'an organ or part of the human body or a substance extracted from, or from a part of, the human body', s 6 of the HTT Act provides that a reference to tissue in pt II of the Act shall not be read as including a reference to 'foetal tissue, spermatozoa or ova'. The divisions of pt II are concerned with 'Donations by adults',[9] 'Donations from children',[10] the 'Effect of consents and authorities',[11] and 'Blood transfusions'.[12] Generally speaking, pt II of the HTT Act regulates the circumstances in which tissue, including organs,[13] but not including foetal tissue, sperm or eggs, may be taken from one (living) person and transplanted into the body of another with the consent of the first person.

51 Part III of the HTT Act is entitled 'Donations of tissue after death'. Because there is no restriction upon the definition of 'tissue' for the purposes of pt III, it applies to gametes, including sperm and eggs.

52 Section 22 is of significance to the issues in this case. It provides:

1. Designated officer may authorise removal of tissue from bodies in hospital

(1) A designated officer for a hospital may, subject to and in accordance with this Part, authorise the removal of tissue from the body of a person who has died in hospital or whose dead body has been brought into the hospital -

(a) for the purpose of the transplantation of the tissue to the body of a living person; or

(b) for use of the tissue for other therapeutic purposes or for medical or scientific purposes.

(2) A designated officer for a hospital may authorise the removal of tissue from the body of a person who has died in the hospital or whose dead body has been brought into the hospital -

(a) where, after making inquiries, the designated officer is satisfied that the deceased person during his lifetime expressed the wish for, or consented to, the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1) and had not withdrawn the wish or revoked the consent; or

(b) where, after making inquiries, the designated officer has no reason to believe that the deceased person had expressed an objection to the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1) and the designated officer is satisfied that the senior available next of kin consents to the removal of tissue from the body of the deceased person for the purpose or a use referred to in subsection (1).

(3) The authority of a designated officer to authorise the removal of tissue from the body of a deceased person under this section is restricted -

(a) in the case of the circumstances referred to in subsection (2)(a), by the expressed terms of the wishes or consent of the deceased person;

(b) in the case of the circumstances referred to in subsection (2)(b), by the consent of the senior available next of kin,

both as to the tissue which may be removed and as to the purpose or use of the tissue.

(4) The senior available next of kin of a person may make it known to a designated officer at any time when the person is unconscious before death that he consents to the removal, after the death of the person, of tissue from the body of the person for the purpose or a use referred to in subsection (1), but the designated officer shall not act on such an indication if the person recovers consciousness.

(5) Where there are 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of 'senior available next of kin' in section 3, an objection by any one of those persons has effect for the purposes of this section notwithstanding any indication to the contrary by the other or any other of those persons.

53 Section 24 provides that an authority granted under pt III is sufficient authority for a medical practitioner to remove tissue from the body of the deceased person referred to in the authority for the purpose of the transplantation of the tissue to the body of the living person or for use for other therapeutic purposes or for medical or scientific purposes 'but subject in every case to any limitations or restrictions that may be expressed in the authority given under section 22(3)'.[14] Neither of the expressions 'therapeutic purposes' or 'medical purposes' are defined for the purposes of the HTT Act. In the absence of any such definition, each expression would appear broad enough to include the use of sperm in IVF procedures.[15]

54 I digress to observe that it was submitted on behalf of the defendants that pt III of the HTT Act was only concerned with the authorisation of the removal of tissue from a deceased person, and did not regulate or constrain the use to which removed tissue could be put. That submission is not correct. Section 22(3) provides that the authority of a designated officer to authorise the removal of tissue from the body of a deceased person is restricted by the expressed terms of the wishes or consent of the deceased person, or by the consent of the senior available next of kin, as the case may be, 'both as to the tissue which may be removed and as to the purpose or use of the tissue'. Further, s 24(1) provides that the authority conferred upon a medical practitioner by the grant of authority pursuant to pt III is subject to the limitations or restrictions imposed upon the authority of a designated officer under s 22(3).

55 So, in this case, sperm was removed from Gary's body under the authority of Dr Platell, a 'designated officer' for the purposes of pt III, because he was satisfied that the plaintiff, who he considered to be the senior available next of kin, consented to removal of sperm from Gary's body for a therapeutic or medical purpose being for later use in an IVF procedure undertaken to enable the plaintiff to conceive a child. It follows that Dr Platell's authority, and the authority of the medical practitioner who removed the sperm from Gary's body, were each restricted by the purpose for which the plaintiff gave her consent - namely, the purpose of, in due course, using the sperm extracted for IVF procedures undertaken for the purpose of enabling the plaintiff to conceive a child. Pursuant to the provisions of the HTT Act to which I have referred, that is the only purpose for which the sperm can be used.

56 Because, for reasons which will appear, that conclusion is of some significance to each of Questions 1 and 2, it is necessary to address the question of whether the plaintiff was, in fact, the 'senior available next of kin' for the purposes of s 22 of the HTT Act. That expression is defined by s 3 of the HTT Act to mean, relevantly to this case:

[T]he first in order of priority of the following persons who is available at the time -

(i) ...

(ia) the spouse, or de facto partner who has attained the age of 18 years, of the person;

(ii) a son or daughter, who has attained the age of 18 years, of the person.

57 Section 13A of the Interpretation Act 1984 (WA) provides that a de facto relationship is a 'relationship ... between two persons who live together in a marriagelike relationship'. I will address the question of whether the evidence establishes that the plaintiff and Gary were living in a de facto relationship, and that therefore the plaintiff was Gary's de facto partner for the purposes of the HTT Act when I come to address the issues raised by Question 1.

58 Before leaving the HTT Act I should note that the word 'donation' is only used four times in that Act - each time in a heading, rather than in the text of an operative provision. The headings in which the word is used are nonetheless part of the HTT Act.[16] It is clear from the context in which the word appears on each occasion it is used that it is not being used in its more narrow legal sense, of the transfer of property from one person to another without consideration. That is because the principles to which I will refer below establish that, generally speaking, a person has no proprietary right over their own body or any part of their body which could be transferred to another, irrespective of consideration. Nor could the removal of tissue from a deceased person with the consent of the senior available next of kin for use in transplantation, or for therapeutic, scientific or medical purposes, be described as a 'donation' in the narrow legal sense to which I have referred, because there would ordinarily be no transfer of property from either the deceased or the senior available next of kin to anybody else. Rather, it is clear that in the contexts in which it is used in the HTT Act, the word 'donation' corresponds to its use in common parlance, where people who agree to their blood being removed for transfusion into others are commonly described as 'blood donors', and people who consent to their organs being removed for transplantation into others (either before or after their death) are commonly described as 'organ donors'.

The HRT Act

59 The long title of the HRT Act describes its purposes as including the establishment of the RTC, requiring the compilation of a Code relating to the practice of, the procedures used in, and the ethics governing, human reproductive technology and making provision with respect to the use of that technology in relation to artificially assisted human conception. The preamble to the HRT Act recites the following matters:

1. In enacting this legislation Parliament is seeking to give help and encouragement to those eligible persons who wish to be parents.
2. Parliament considers that the primary purpose and only justification for the creation of a human embryo in vitro is to assist persons who are unable to conceive children naturally due to medical reasons or whose children are otherwise likely to be affected by a genetic abnormality or a disease, to have children, and this legislation should respect the life created by this process.

60 Section 4 of the HRT Act specifies its general objects, consistently with the purposes identified in the long title and preamble to the Act.

61 Part 2 of the HRT Act establishes the RTC and prescribes its composition and functions. Those functions include the publication of a Code of Practice, being the Code to which reference is made in the long title to the HRT Act. Part 2 of the HRT Act, establishing the RTC, came into force on 6 March 1992. However, no Code of Practice has been published by the RTC. Neither party was able to proffer any explanation for the apparent failure of the RTC to perform this statutory function during the period of more than 25 years since its creation.[17]

62 Part 3 of the HRT Act contains detailed provisions with respect to the structure of the Code of Practice, the matters which must be dealt with in the Code, the matters which may be dealt with in the Code, and the principles to which the RTC is to have regard when compiling the Code.

63 The matters which may be dealt with in the Code are specified by s 18 of the HRT Act, and include:[18]

[T]he donation, use, supply, export from the State, posthumous use, or other dealing in or disposal of, human gametes, human eggs undergoing fertilisation or human embryos by licensees.

64 The expression 'human gamete' is defined by s 3 of the HRT Act to mean a human egg or a human sperm.

65 Section 31 of the HRT Act provides that the CEO may from time to time give directions in relation to any matter for which a provision of the Code could be made, giving due regard to the principles set out in the Act. The Directions have been promulgated in the exercise of this power.

66 The Code of Practice is to contain Rules which, following compliance with the procedure specified in s 16 of the HRT Act relating to the Rules being laid before each House of Parliament, have effect as subsidiary legislation. Directions given by the CEO pursuant to s 31 of the HRT Act can take effect as subsidiary legislation if published in the Government Gazette (as the Directions were),[19] but do not give rise to norms of conduct or behaviour applicable to the world at large, rather create obligations which are imposed upon licensees.[20]

67 Contravention of a direction applicable to a licence is not to be taken to be an offence unless the regulations specifically otherwise provide, but may constitute grounds for disciplinary action against a licensee.[21]

68 Section 21 of the HRT Act provides that the Code, or directions, may make provision as to:[22]

(c) the method by which, and the extent to which, donors or prospective donors of human gametes, human eggs undergoing fertilisation or human embryos are to be assessed or selected; and

...

(h) limitations to be placed on the use of human gametes, human eggs undergoing fertilisation or human embryos which may be donated by any one individual donor.

69 Part 4 of the HRT Act is concerned with licencing. The licences which may be granted pursuant to its provisions include a storage licence, a practice licence, and both a storage licence and a practice licence. As the words connote, a storage licence may authorise the licensee to carry out procedures relating to the storage of human eggs, embryos, eggs undergoing fertilisation, and human sperm. A practice licence may authorise the licensee to carry out any artificial fertilisation procedure. By s 3 of the HRT Act, an 'artificial fertilisation procedure' means any artificial insemination procedure or in vitro fertilisation procedure. By the same section, an 'artificial insemination procedure' is defined to mean a procedure whereby human sperm are introduced, by a noncoital method into the reproductive system of a woman but which is not part of an in vitro fertilisation procedure. The same section defines 'in vitro fertilisation procedure' to mean a procedure consequent upon the removal of a human egg from the body of a woman carried out for the purpose of fertilising that egg either within or outside her body, and other variants of such a procedure.

70 Section 33(2)(e) provides that every licence granted is subject to the condition that s 22(1) is complied with. That subsection 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.

71 Section 25 of the HRT Act is of significance to the issues in this case. It provides:

In relation to any rights in, or power to deal with or dispose of, human gametes -

(a) in respect of both human eggs and human sperm, all rights remain vested in the respective gamete providers, unless and until otherwise dealt with, as though personal property subject to section 53Q; and

(b) where human gametes are donated with effective consent to a licensee, all rights in those gametes vest in the licensee subject to the limitation that, in accordance with that consent, the gametes may be used -

(i) for the purpose of initiating an in vitro fertilisation procedure intended to develop a human egg undergoing fertilisation or a human embryo for implantation into a recipient named in, or to be selected in accordance with circumstances specified, in that consent; or

(ii) for artificial insemination purposes; or

(iii) in, or in connection with, an approved project of research; or

(iv) for the purposes of diagnostic procedures,

and not otherwise, but if the gametes are not so used they shall, subject to section 26(1)(c) and (d), be allowed to succumb; and

(c) in respect to human gametes donated subject to a consent which is conditional and which are not used, if a condition to which the consent was made subject is not observed, the rights, subject to section 22(6) and any instructions to which effect can then be given, revert to the donor and in default vest in the CEO.

72 Section 53Q of the HRT Act creates the offence of offering or receiving, or offering to receive valuable consideration from another for, the supply of a human egg, human sperm or a human embryo. For the purposes of the section the expression 'valuable consideration' is defined in such a way as to exclude the payment of reasonable expenses incurred by the person in connection with the supply.

73 Section 26 of the HRT Act deals with various aspects of the fertilisation process and includes the following provision:[23]

[W]here from any human gametes, a human egg undergoing fertilisation or a human embryo is developed, whether or not with effective consent, the individual rights of a human gamete provider or person to whom the human gametes were provided and of a licensee cease at the moment fertilisation begins and the rights thereafter vest jointly in the couple on whose behalf that egg or embryo was developed, or vest in the woman on whose behalf that egg or embryo was developed.

74 So, at the moment fertilisation begins, rights vest in the person or persons specified in that provision.

75 It should be noted that the HRT Act does not prohibit the posthumous use of human gametes, or the export of human gametes from the State. The only reference to such matters in the HRT Act is in s 18(1)(f), which provides that the Code of Practice may make provision for such matters. Because no Code of Practice has been promulgated, it follows that the RTC has never promulgated subsidiary legislation of general application with respect to such matters. However, the CEO has used the power to issue directions with respect to matters for which provision could be made in the Code[24] to issue the Directions imposing obligations upon licenceholders, which include provisions relating to such matters, as will be seen. It will also be seen that the Directions were issued by the CEO on the advice of the RTC.

76 It is clear from the HRT Act as a whole that it regulates a range of practices associated with human reproductive technology. The parties to these proceedings are agreed that its terms can be construed in a context in which the practices regulated include:

(a) the use of sperm from an identified man to fertilise an egg from an identified woman, the man and the woman being known to each other and usually, but not always, either married or in a de facto relationship; and

(b) the use of sperm from a man who is not known to, or in any form of relationship with, a woman whose egg is fertilised using that sperm.

77 These scenarios are not intended to be exhaustive but merely indicative of the range of circumstances to which the HRT Act may apply. I have deliberately omitted the scenarios in which a fertilised egg may be implanted in a woman who was not the source of the egg, because of the potential complications arising from the possibility that such circumstances may constitute surrogacy.

78 In Scenario 1 above, the artificial fertilisation services provided by the holders of storage and practice licences will be utilised to fertilise an egg from a known and identified woman using sperm from a known and identified man. Married or de facto couples undergoing IVF procedures provide a common example of this scenario. Other less common examples might include a single or lesbian woman who wishes to conceive a child using sperm from a man she has chosen for that purpose, but with whom she is not in a relationship. The use to which the plaintiff wishes to put the sperm extracted from Gary's body also comes within this scenario.

79 In Scenario 2 above, the artificial fertilisation services provided by the holders of storage and practice licences will be utilised to fertilise the egg of a woman utilising sperm from a man with whom she is not in a relationship and who is not previously known to her. The sperm might be chosen randomly from amongst a bank of sperm samples provided to a licence holder by men who are willing to allow their sperm to be used for this purpose. Alternatively, the sperm might be selected from amongst the bank of samples held by a licence holder by reference to the characteristics of the provider of the sperm - such as the colouring of skin, hair, eyes or other genetic characteristics. Men providing sperm to licence holders for use in this way are commonly described as 'sperm donors', and the bank of samples held by licence holders provided by such donors are commonly described as 'sperm banks'.

80 The critical characteristic which distinguishes Scenario 2 from Scenario 1 is that in Scenario 2, the person providing the sperm to the relevant licence holder authorises the licence holder to determine the use that will be made of the sperm provided and, in particular, authorises the licence holder to determine the eggs with which they will be matched. In common parlance, the words 'donor' and 'donation' are used to describe the process by which that authority is conferred upon the licence holder. By contrast, in Scenario 1, the licence holder has no authority to determine the gametes which will be matched to produce a fertilised egg and is only authorised to match gametes provided by the two specifically identified individuals. These circumstances would not be described as involving 'donation' in common parlance.

81 It is clear from the HRT Act as a whole that the words 'donor' and 'donation' are consistently used throughout the Act in a manner which corresponds with the common parlance to which I have referred and, in particular, to describe a circumstance in which gametes have been provided to a licence holder together with the authority to determine the manner in which those gametes will be used and, in particular, the gametes with which they will be matched to produce a fertilised egg. That point can be made good from a consideration of each occasion upon which the words 'donation' or 'donor' are used in the Act, which I will address, for convenience, in the order in which they are found in the Act.

82 Section 3 of the HRT Act provides that:

participant, in relation to any artificial fertilisation procedure, means -

(a) a person who -

(i) undergoes that procedure; or

(ii) is the donor, or being a woman is the recipient, of human gametes, of a human egg undergoing fertilisation or of a human embryo used in that procedure.

83 The same section defines 'procedure' to mean 'any treatment, course of treatment or cycle of treatment involving reproductive technology'.

84 Returning to the two scenarios which I set out above, and taking the most common example of Scenario 1, each member of a couple engaged in an IVF programme would be described as undergoing that course or cycle of treatment and would, for that reason, come within the definition of 'participant'. By contrast, a person who had provided gametes to a licence holder on terms which authorise the licence holder to determine the use to which the gametes would be put could not be described as undergoing any form of treatment or cycle of treatment. A parliamentary intention to include such persons within the definition of 'participant' can be gleaned from the way in which that word is used in other sections of the Act. For example, s 18(2)(a) provides that the Code of Practice may establish criteria as to the consent required of 'participants'. It seems reasonable to infer that the parliament would have intended that the Code should make provision for the precise terms of the consent provided by those who provide gametes to licence holders on terms which confer upon the licence holder the authority to determine the manner in which the gametes will be used.

85 I have set out s 18(1)(f) above.[25] There is no reason to suppose that in its context the word 'donation' should bear any other meaning than the meaning in common parlance to which I have referred - that is, the circumstance in which gametes are provided to a licence holder with authority to determine the manner in which the gametes will be used. It would not be reasonable to attribute to the parliament, based on the words which have been used or their context, an intention that 'donation' would include cases falling within the first scenario to which I have referred - namely, the use of artificial fertilisation procedures to produce a fertilised egg from gametes provided by two known and identified people. This conclusion is consistent with a concession properly made by Senior Counsel for the defendants in relation to the meaning properly given to 'donation' in cl 6.5 and cl 6.6 of the directions.

86 I have set out s 21(c) above.[26] Methods by which donors or prospective donors are to be assessed or selected can only apply to circumstances of the kind depicted in Scenario 2 above. In Scenario 1 above, no selection process is involved, as the providers of the gametes have identified each other, and the artificial reproduction services can only be provided in respect of those identified persons.

87 I have set out s 21(h) above.[27] The placement of limitations on the use of human gametes which may be donated by any one individual donor can only relate to circumstances falling within Scenario 2 above. In Scenario 1, all necessary limitations are inherent in the scenario itself - namely, that the gametes can only be used in a procedure utilising gametes from the other known and identified person.

88 I have set out s 25 above.[28] Section 25(b) provides perhaps the clearest example of the proposition now being developed. It expressly and specifically refers to the donation of gametes to a licensee, and provides that all rights in those gametes vest in the licensee, subject to general limitations upon the use to which the gametes may be put. I describe those limitations as general because they are expressed in terms of purposes - namely, for the purpose of IVF, artificial insemination, an approved project of research or a diagnostic procedure. No limitation is specified with respect to the person with whose gametes they may be matched in order to produce a fertilised egg. This provision leaves no doubt that when using the word 'donation' or a variant thereof in the HRT Act, parliament may be taken to have intended to connote a circumstance in which a licence holder has been given authority to determine the particular use to which gametes provided to that licence holder would be put.

89 This meaning is reinforced by s 25(c), which provides that where gametes have been 'donated subject to a consent which is conditional', in certain circumstances rights 'revert to the donor' - terminology which is only consistent with a circumstance in which rights to determine the use to which the gametes would be put have been vested in the licence holder by reason of the 'donation'.

90 Section 44 provides that a licensee must make and retain a proper record showing, in relation to human gametes, 'the identity and consent of the donor from whom, and the date when, received', together with various other things.

91 Unlike the other references to 'donation' in the HRT Act, in the context of s 44, it is not entirely clear whether the word 'donor' should bear the meaning which it bears in the other sections to which I refer, or whether it should bear a broader meaning of 'provider'. Although s 44(1)(b) requires a record to be maintained in relation to all artificial fertilisation procedures carried out showing the identity of, and full particulars as to the consent given by, each participant, there is no provision in s 44 for the identity of the provider of human gametes held in storage to be maintained, other than the provision referring to 'the donor'. On the one hand, it might be thought that the requirement to maintain records of the identity of all participants in artificial fertilisation procedures is considered sufficient in respect of circumstances falling within Scenario 1 above, in which case 'donor' could reasonably bear the more restricted meaning which it bears, for example, in s 25(b).

92 On the other hand, it might be thought that the legislature would likely have intended that a record be kept of all human gametes provided to a licence holder, irrespective of whether or not the gametes are actually used in a fertilisation procedure, in which case the word 'donor' would have to be given the wider meaning of 'provider' in order to achieve that objective.

93 If there were any doubt remaining as to the meaning properly given to the word 'donation' and its variants in the HRT Act, s 49 removes that doubt entirely. It provides, relevantly:

(1) A person shall not divulge, or communicate to any other person, any information disclosed or obtained by reason of this Act respecting the identity of -

(a) a donor of human gametes, a human egg undergoing fertilisation or a human embryo; or

(b) a participant in any procedure involving reproductive technology; or

(c) a child born as a result of any artificial fertilisation procedure,

(2) Information to which subsection (1) applies may be divulged or communicated -

(a) for a purpose necessary to the carrying out of any procedure, or the conduct of any research, to which this Act applies; or

(b) for the purposes of and in the course of the administration of this Act, or pursuant to a request of the Minister made for the purposes of section 5; or

(c) as may be authorised or required by the Code or the regulations; or

(d) subject to subsections (2a) to (2c), with the consent of each donor, participant or child in question or other person whose identity may be disclosed in so far as it does not identify any person who was a participant in the relevant procedure and who has not given such consent; or

(e) under an authorisation conferred by another written law.

(2a) Information that would identify a child born as a result of the relevant procedure who has not reached 16 years of age cannot be divulged or communicated under paragraph (d) of subsection (2) unless each person who has given consent for the purposes of that paragraph has completed approved counselling before giving that consent.

(2b) Except as provided in subsection (2c), a child who has not reached 16 years of age cannot consent for the purposes of subsection (2)(d).

(2c) A person who has parental responsibility (as defined in section 68 of the Family Court Act 1997) for the child may, after completing approved counselling, consent for the purposes of paragraph (d) of subsection (2) on behalf of that child and in that case the child is to be taken to have consented for the purposes of that paragraph.

(2d) Subject to subsection (2e), information to which subsection (1)(a) applies may be divulged or communicated to a child resulting from the donation who has reached 16 years of age and who has completed approved counselling.

(2e) Information cannot be divulged or communicated under subsection (2d) unless -

(a) the donation was made on or after the day on which the Human Reproductive Technology Amendment Act 2004 came into operation (the commencement day); or

(b) the donation was made before the commencement day and -

(i) was used with the effective consent of the donor given on or after the commencement day; or

(ii) the CEO is satisfied that the donor was, before the donation, adequately informed that future changes in legislation might enable the information to be divulged or communicated to the child without the donor's consent.

approved counselling means counselling approved by the CEO in relation to the divulging or communication of information to which subsection (1) applies.

(3) A person shall not produce in any court or to any other person, or permit any other person to have access to, a record that is, in the course of the administration of this Act or for purposes authorised by this Act, in the custody of that person and discloses, or may disclose, the identity of -

(a) a donor of human gametes, a human egg undergoing fertilisation or a human embryo; or

(b) a participant in any procedure involving reproductive technology; or

(c) a child born as a result of any artificial fertilisation procedure,

94 The detailed provisions contained within this section relating to the protection of the confidentiality of a 'donor', including provisions relating to a circumstance in which a child has been born as a result of a relevant 'donation', could have no meaningful application to a circumstance in which a man and a woman whose gametes were used to conceive the child were known to and selected by each other. Rather, the section could only have any meaningful application to a circumstance in which a child was born as a consequence of the use of gametes in circumstances analogous to Scenario 2 above - namely, the circumstance in which gametes have been provided to a licence holder with authority to determine the circumstances in which those gametes will be used and, in particular, with the authority to determine the gametes with which they will be matched in order to produce a fertilised egg.

95 As I have noted, all parties are agreed that Question 1 should be answered in the affirmative. It is nevertheless desirable to briefly record my reasons for concluding that the parties are correct in this assessment. Further, an analysis of the plaintiff's rights with respect to the sperm currently held in storage by the holder of a licence under the HTT Act is relevant to Questions 2 and 3.

96 For the reasons I have already given, an assessment of those rights must first commence with an assessment of the question of whether the plaintiff was in fact the 'senior available next of kin', within the meaning of that expression in the HTT Act, at the time she consented to the removal of sperm from Gary's body and specified the purpose for which it was to be used namely, in order to enable her to conceive a child using that sperm. Again, for the reasons I have given, that issue turns upon the question of whether the plaintiff was in a de facto relationship with Gary at the time of Gary's death.

97 I have already set out above the general definition of a de facto relationship contained in s 13A of the Interpretation Act. Section 13A(2) provides:

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there has, or has been a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f) the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

98 I have set out the plaintiff's evidence in relation to these matters in detail. That evidence, viewed as a whole, is generally consistent with the statements presumably made by the plaintiff which are recorded in the hospital notes to which I have referred. The evidence is not contradicted, and there is no reason why it should not be accepted. The defendants do not submit otherwise.

99 The evidence establishes that the plaintiff and Gary commenced a marriagelike relationship not later than April 2010 when they commenced living together. Between that time and Gary's death almost six years later, the relationship had many of the indicia of a marriage including the maintenance of a close personal association, to the exclusion of all others, a continuing sexual relationship, a degree of financial and emotional interdependence, the joint ownership of property, and mutual commitment to a shared life in a relationship which was known to those who knew the couple.

100 The only aspect of the relationship which would give rise to any doubt as to its marriage-like character arises from the fact that the plaintiff and Gary were unable to share a common residence for a number of years as a result of their parlous financial circumstances. A number of points can usefully be made about this aspect of the assessment of the plaintiff's relationship with Gary.

101 First, although the general definition of de facto relationship in s 13A(1) refers to 'two persons who live together', it is clear from s 13A(2) that the expression 'live together' is to be construed broadly, in the sense of two persons sharing their lives, rather than in the narrower sense of two persons sharing the same physical abode. It is clear from s 13A(2) that the nature and extent of common residence, and the extent to which the parties have resided together, are only two of the factors which must be evaluated in a multifactorial assessment undertaken for the purpose of ascertaining whether or not the parties are living in a marriagelike relationship.[29]

102 Second, in an assessment of whether a relationship is 'marriagelike' notwithstanding physical separation, much will depend upon the circumstances in which the physical separation occurs, and the reasons for it. It is easy to imagine circumstances in which physical separation might cast no doubt upon the marriagelike quality of a relationship. For example, during times of war, married members of the armed services might serve overseas for years at a time in circumstances which give rise to no doubt as to the commitment of both parties to the marital relationship, or the nature of that relationship. The same may be said of other periods of forced separation, such as that arising from imprisonment or lengthy hospitalisation. There will also be circumstances in which the parties might choose lives which lead to extensive periods of physical separation - for example, one party to a marriagelike relationship might choose work on remote mine sites, or in the merchant navy, without giving rise to any doubt with respect to the marital character of the relationship.

103 Each of the examples I have given have the common characteristic of physical separation coming about by reason of circumstances which cast no doubt upon the continuing character of the relationship, assuming, of course, that the parties to the relationship maintain their emotional commitment to each other notwithstanding their physical separation.

104 In the present case, the evidence establishes that neither Gary nor the plaintiff sought physical separation. To the contrary, physical separation was forced upon them by reason of their financial circumstances. Notwithstanding their physical separation, their emotional commitment to each other was maintained, as were various other indicia of the marital character of their relationship, including their social and sexual relationship and the plaintiff's financial support of Gary. It is both significant, and tragic, that the couple were about to reach the point at which their accommodation difficulties would be overcome, through the Keystart programme, when Gary died.

105 The defendants accept, quite properly, that on the evidence it is open to me to find that the plaintiff was in a de facto relationship with Gary at the time of his death. For the reasons I have given, I make that finding. It follows that Dr Platell was correct to conclude that the plaintiff was the senior available next of kin at the time she consented to the extraction of sperm from Gary's body and determined the purpose to which the extracted permit sperm could be put. For the reasons I have given, pursuant to s 22 of the HTT Act, that purpose continues to constrain the use to which Gary's sperm can be put.

106 The plaintiff has submitted that the removal of Gary's sperm was also authorised pursuant to s 22(2)(a) of the HTT Act by reason of the evidence relating to the views which Gary expressed during his lifetime with respect to the removal and storage of his sperm. There are two reasons why that submission must be rejected. First, s 22(2)(a) is conditioned upon the satisfaction of the designated officer to the effect that the deceased expressed the wish for, or consented to, the removal of tissue after his death. In this case, the relevant designated officer was Dr Platell, and there is no evidence to suggest that he was satisfied that Gary had expressed the wish for or consented to the removal of sperm after his death. Second, the evidence goes no further than suggesting that Gary had contemplated the removal and storage of his sperm during his lifetime, against the contingency of his death. There is no evidence to suggest that Gary ever turned his mind to, or expressed the wish for or consented to the removal of sperm from his body after his death, which is the condition upon which s 22(2)(a) would operate in this case.

107 It follows that the authority for the removal of sperm from Gary depended upon, and was conditioned by, the approval of the plaintiff and the purpose for which she wished the sperm to be removed.

108 Question 1 is limited to the question of whether the plaintiff has the right to direct the clinic storing the sperm to transfer the sperm to another clinic in the ACT. The Question does not, in its terms, require the court to determine whether or to what extent the plaintiff has rights of property in the sperm stored by the clinic. I infer that the Question was deliberately crafted in this way. Nevertheless, the plaintiff submits that she does have rights of property in the sperm as the foundation for submissions put in respect of Question 2, to the effect that the word 'donation' in cl 6.5 and cl 6.6 of the Directions bears the narrowed legal meaning of transfer of property from one person to another without consideration. In that context the plaintiff submits that she acquired property in the sperm upon its extraction, and retains that property, with the consequence that no 'donation' has occurred.

109 For the reasons which I give below, I do not accept the plaintiff's contentions with respect to the meaning properly given to the word 'donation' and its variants in the Directions and, in particular, do not consider that the transfer of proprietary interests or rights has any bearing upon its meaning and application. The question of whether the plaintiff's rights with respect to the sperm held in storage can be characterised as proprietary in nature involves complex and vexed questions of principle.[30] Because of my assessment that the resolution of that question is not determinative of the outcome of this case, my views on that topic can be expressed with relative brevity.

110 It should first be acknowledged that the concept of 'property' may be 'elusive'.[31] In a broad sense, 'property' may be used to describe a legal relationship between a person and a thing.[32] The relevant legal relationship will generally involve 'a degree of power that is recognised in law as power permissibly exercised over a thing'.[33] The nature of the powers recognised in law in relation to a thing may vary significantly, depending upon the context in which the term 'property' is used. As the plurality observed in Yanner v Eaton:[34]

'Property' is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not 'a monolithic notion of standard content and invariable intensity' ...

Because 'property' is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B?

111 The plurality illustrated this proposition by reference to the topic under consideration in this case, when they observed that the question of 'whether, or to what extent, there can be ... property in human tissue may illustrate some of the difficulties in deciding what is meant by "property" in a subject matter'.[35]

112 So, in the present case the answer to the question of whether the plaintiff has 'property' in the sperm extracted from Gary's body might turn upon the nature of the power sought to be exercised in relation to the straws in which the sperm are being stored. If the question were, for example, whether the plaintiff has the power, recognised by law, to transfer to another person the full and unrestricted right to use or direct the disposition of the sperm, the answer might well be in the negative, because such a power would be inconsistent with the purpose for which the sperm were extracted in accordance with s 22 of the HTT Act. On the other hand, if the question was whether the plaintiff has the power to direct that the straws be transferred to another clinic for storage pending their use, the answer might be quite different. Question 1 has been formulated in such a way as to pose a question of the latter kind, rather than a question of the former kind.

113 It is often said that there is a common law principle to the effect that there is no property in a human corpse. As Dr Hardcastle points out, this principle may have evolved as a consequence of misinterpretation by Blackstone, and mistranslation by Sir Edward Coke.[36] Despite its dubious origins, the principle is now too well established to be doubted.[37]

114 As Edelman J has pointed out, writing extra curially, it does not follow from the principle that there is no property in a corpse that there can be no property in a part of a body.[38] So, for example, if a person uses hair cut from their head to create a wig, there is no apparent reason why the wig as a whole, including the hair, could not be the subject of conventional property rights. Following severance the hair becomes a thing quite separate and distinct from the body from which the hair was severed, in the same way as grain harvested from a crop becomes property separate and distinct from the crop, by reason of the act of harvest, or fruit harvested from a tree becomes property separate and distinct from the tree when it is picked.

115 However, at least in the case of body parts or tissue removed from a corpse, the English and Australian cases rely upon a narrower principle than mere severance to sustain the proposition that, in some cases, tissue removed from a body can be 'property'. The line of cases establishing that, in some circumstances, tissue or part of a human body removed from a corpse can be the subject of property rights are generally described as falling within the 'work or skill' exception to the 'no property' principle, by reference to the words used by Griffith CJ in the case generally regarded as the source of this principle: Doodeward v Spence.[39] In that case, Griffiths CJ observed:[40]

[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, but I entertain 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.

116 In Roche v Douglas[41] Master Sanderson incorporated a significant portion of the reasons given by Griffith CJ in Doodeward v Spence in his reasons for concluding that tissue samples taken from a corpse were property in respect of which orders could be made by the court pursuant to O 52 r 3(1) of the Rules of the Supreme Court 1971 (WA). In that case the plaintiff sought an order to the effect that the tissue be tested in order to extract the DNA of the deceased, which could then be used for the purpose of assessing whether or not the plaintiff was the biological daughter of the deceased. It is not clear from the reasons whether the Master relied upon the work or skill required to remove the tissue samples from the body of the deceased in such a way as to render them amenable to DNA testing - the reasons rather suggest some broader approach based upon the fact that the samples had been severed from the body and had a separate and real physical presence.[42]

117 In Yearworth v North Bristol NHS Trust[43] the English Court of Appeal relied upon the work and skill exception, along with other factors particular to the circumstances of that case, to conclude that men who were claiming damages for negligent storage of their sperm were the owners of that sperm.[44]

118 In Australia there have been a number of cases in which it has been held, generally in reliance upon the work and skill exception, that frozen sperm samples can be 'property' in the sense that a person or persons may have rights recognised by law in respect of such samples. In Bazley v Wesley Monash IVF Pty Ltd[45] the widow of a man who had arranged for samples of his sperm to be stored by an IVF clinic prior to his undergoing chemotherapy obtained a court order restraining the clinic from destroying the samples after his death on the basis that the sperm samples were property.

119 In Edwards; Re Estate of Edwards the widower and administrator of the estate of a man from whom sperm had been extracted posthumously sought a declaration that she was entitled to possession of the sperm (even though she was not entitled, under the law of New South Wales, to use the sperm for the purposes of artificial reproduction).

120 R A Hulme J applied the work and skill exception enunciated by Griffith CJ in Doodeward v Spence to conclude that the sperm removed from the deceased was property, acknowledging both the imprecision of the concept of 'property' in such a context[46] and the fact that any right or power encompassed within the relevant notion of 'property' could be subject to statutory constraint as a result of the legislation relating to artificial reproduction.

121 R A Hulme J also addressed the question of the identification of the person who had proprietary rights in the sperm. He immediately excluded the deceased, on the basis that as he could not hold any proprietary right in his semen while he was alive, it could not form part of the assets of his estate upon his death.[47] He also excluded the possibility that the property might be held by the doctors and technicians who exercised the work and skill required to extract the sperm from the body of the deceased, on the basis that they were not doing so for their own purposes, but performed those functions on behalf of the widow as her agents.[48]

122 R A Hulme J also excluded the prospect that the widow could have a proprietary right in the sperm samples as an incident of her rights as administrator of the deceased's estate, on the basis that her rights in that capacity were limited to the duty to decently inter the corpse of the deceased.[49] However, R A Hulme J acknowledged that the views of the administrator of the estate of the deceased would be relevant to the exercise of the discretion with respect to the grant of declaratory relief, and the fact that the widow was also the administrator of the estate was relevant in that respect.

123 In the result, R A Hulme J concluded that such property as existed in the sperm lay with the widow on the basis that the sperm was removed on her behalf and for her purposes and that no-one else in the world had any interest in them.[50] Having concluded, after reviewing the relevant statutory provisions, that they did not preclude the relief sought, R A Hulme J declared that the widow was entitled to possession of the sperm recovered from the body of her late husband.

124 In Re H, AE (No 2),[51] in similar factual circumstances, the Supreme Court of South Australia arrived at the same conclusion as the Supreme Court of New South Wales in Edwards. Gray J relied upon the work or skill exception to conclude that sperm extracted posthumously from the deceased was property and that the widow who had caused the sperm to be removed was the person entitled to such proprietary rights as existed in relation to the sperm, including a prima facie entitlement to possession of the sperm.

125 There are, therefore, three decisions at first instance in the Supreme Courts of Queensland, New South Wales and South Australia in factual circumstances very similar to the present case in which the binding authority of Doodeward v Spence has been applied to produce the conclusion that rights of property can exist in relation to samples of sperm removed posthumously and that such rights will generally be enjoyed by the person who caused the sperm to be extracted rather than the deceased, or the relevant medical personnel, or the administrator of the deceased estate. As the reasoning in those cases appears to me to be correct and consistent with binding authority, there is no reason why I should not follow those decisions and conclude that the plaintiff has rights with respect to the sperm samples currently in storage which can be categorised as proprietary in nature.

126 The terms in which Question 1 has been cast do not require me to determine the entire ambit or content of the plaintiff's rights with respect to the sperm samples taken from Gary. As I have already noted, those rights may well be constrained by the operation of, for example, s 22 of the HTT Act, such that the plaintiff could not direct any use of the sperm which is inconsistent with the purpose for which it was removed, in accordance with the authority conferred by that section. The only right which I am required to assess for the purposes of Question 1 is the plaintiff's right to direct the clinic currently storing the sperm samples to transfer them to another clinic in the ACT. As the exercise of that right would be entirely consistent with the purpose for which the sperm was removed pursuant to the authority conferred by s 22 of the HTT Act, there is no reason, consistently with the authorities to which I have referred, why the plaintiff should not be held to enjoy that right.

127 Before leaving the topic of the plaintiff's rights with respect to the stored sperm samples, it is necessary to address submissions advanced on behalf of the defendants based on s 25(a) of the HRT Act. I have set out that section above.[52] The defendants rely on the provision for two propositions:

(a) because the section refers to rights 'as though personal property' the HRT Act impliedly excludes the existence of proprietary rights in human gametes; and

(b) the effect of the section is to vest all relevant rights in the 'gamete provider', who in this case was Gary, not the plaintiff.

128 Each proposition must be rejected. For the reasons I have given, the existence of property rights in human tissue remains contentious and, apart from cases like this, the precise circumstances in which proprietary rights in human tissue will be recognised at law remain to be elucidated by decisions of the courts. The HRT Act was enacted well before the Australian decisions recognising the existence of proprietary rights in stored sperm samples to which I have referred. Given this legal uncertainty, the fact that the legislation is expressed in terms of analogy to personal property rights cannot support the inference that the legislature intended to exclude the existence of any rights other than those expressly recognised by the statute.

129 Turning to the second proposition, it may be accepted that, in the ordinary course, the expression 'gamete provider'[53] would be taken to refer to the person from whom the gametes are obtained. That is because, in all but the most exceptional circumstances, such as this case, the person from whom the gametes are obtained will be alive at the time they are taken and capable of enjoying rights of control over the gametes, being the rights expressly recognised by s 25(a).

130 However, the circumstances of this case are far from usual. There is no evidence which establishes the point in time at which technology developed to enable posthumous extraction of sperm, thereby establishing whether or not the legislature might be taken to have known of such a possibility at the time the HRT Act was passed in 1991. It can, however, be reasonably inferred that the legislation has been cast in terms apt to the infinitely more common circumstance in which gametes will be obtained from a person who is alive at the time, rather than posthumously. Although the legislature has turned its mind to the question of posthumous use of gametes, by reference to the specification of that topic in s 18(1)(f), legislative contemplation of the prospect that a gamete provider might die before the gametes have been used is quite different to legislative contemplation of posthumous extraction of gametes.

131 At all events, if the expression 'gamete provider' in s 25(a) is construed as a reference to Gary, in the circumstances of this case, the section can have no meaningful operation, as Gary was of course dead by the time the rights to which the section refers could be vested in him by its operation.

132 There are at least two ways in which the section could be given a sensible operation in the circumstances of this case. One would be to construe it as only applying to a circumstance in which the person from whom the gametes were obtained is alive and capable of exercising the rights vested by the section. Another means of achieving a sensible operation for this section would be to construe the expression 'gamete provider' as applying, in the circumstances of this case, to the person who caused the gametes to be provided to the relevant licence holder - in this case, the plaintiff. On either construction, the section does not support the defendants' argument.

133 So, in summary, with respect to the defendants' second proposition based on s 25(a), if the section is construed in the manner for which the defendants contend, it has no meaningful or sensible application to the circumstances of this case. Alternatively, if the section is given a construction which renders it applicable to the circumstances of this case, it does not support the defendants' proposition.

134 For these reasons, I agree with the parties that Question 1 should be answered affirmatively. Although it is not necessary to determine precisely what rights the plaintiff enjoys with respect to the stored samples of Gary's sperm, those rights at least include the right to direct the clinic currently storing the samples to transfer them to another clinic in the Australian Capital Territory. Those rights derive from the plaintiff's status as senior available next of kin within the meaning of s 22 of the HTT Act, the constraints upon the use to which the samples can be put by the operation of that section, and the fact that the plaintiff caused the samples to be extracted, and has paid, and continues to pay, the costs associated with their storage.

135 Question 2 is concerned with the proper construction and effect of the Directions. The question must be addressed bearing firmly in mind that the Directions do not confer legally enforceable rights nor impose legally enforceable obligations upon anybody other than the holders of licences issued under the HRT Act.[54] Further, the remedy for noncompliance with the Directions by a licence holder is the commencement of disciplinary proceedings, rather than prosecution.

136 The Directions were published on 30 November 2004 by the then CEO on the advice of the RTC.[55] In the section headed 'Interpretation', the Directions provide that:

Unless otherwise provided, all words and phrases in these directions have the same meaning as the Human Reproductive Technology Act 1991.

137 For the reasons I have already given, in the HRT Act the words 'donor' and 'donation' should be construed as applying to a circumstance in which gametes are provided to a licence holder on terms which authorises the licence holder to determine the use which will be made of those gametes in general, and to determine the gametes with which they will be matched for the purpose of a fertilisation procedure in particular. Accordingly, unless there is some indication to the contrary to be obtained from the Directions, those words, when used in the Directions, should be given that same meaning.

138 Clause 6.5 and cl 6.6 of the Directions are central to Question 2. They provide:

*6.5 Export of donated gametes, embryos or eggs undergoing fertilisation for use in an artificial fertilisation procedure

A person to whom the licence applies must not, without the approval of the Council, permit or facilitate the export from the State for use in an artificial fertilisation procedure, gametes, embryos or eggs undergoing fertilisation where donation of human reproductive material has been involved.

*6.6 Council may approve export of donated gametes, embryos or eggs undergoing fertilisation for use in an artificial fertilisation procedure

The Council may approve the export for use in an artificial fertilisation procedure of donated gametes, embryos or eggs undergoing fertilisation to an approved person who has given a written undertaking using Form 10 in Schedule 1, to provide the licensee with information that would be required for the registers, had the donated material been used within this State. Where the undertaking to provide information is not completed within a reasonable time, the approval of the Council to export may be withdrawn and the failure to comply with the undertaking may be taken into consideration in any future application for approval to export to that person.

139 It is clear from the structure of the clauses that the reference to 'donation' in cl 6.5 and to 'donated' material in cl 6.6 are intended to, and have the effect of confining, the operation of the clauses. So, if it had been intended that the approval of the RTC was required before any licence holder could facilitate the export from Western Australia of any donated gametes or other materials, the references to donation and donated materials would have been omitted. The critical question posed by Question 2 concerns the precise ambit of the constraint upon the operation of those clauses imposed by the references to 'donation' and 'donated' material.

140 The plaintiff contends that 'donation' and its variants in cl 6.5 and cl 6.6 should be construed in accordance with the ordinary legal meaning given to such words - namely, as connoting the transfer of property without consideration.

141 The defendants contend that the word 'donation' in the clauses should bear the meaning to be drawn from the HTT Act and which should be taken to be the meaning of the same words in the HRT Act. At one point in the defendants' written submissions it is contended that the relevant meaning is 'any tissue removed from a person for use by another'. However, that meaning would, in effect, deprive the restrictions imposed upon the operation of cl 6.5 and cl 6.6 by reference to 'donation' of any meaningful operation because virtually all artificial reproduction procedures will involve the removal of tissue from one person for use by another. Senior counsel for the defendants expressly conceded that the clauses would not apply in a circumstance in which there was a living gamete provider with control over the uses to which the gametes could be put,[56] which is, in effect, the circumstance which I have referred to as Scenario 1. In light of that concession, counsel relied upon the alternative formulation of the meaning given to the word 'donation' in the defendants' written submissions - namely, 'any gametes no longer under the control of the gamete provider'.

142 A number of general points may usefully be made with respect to the positions adopted by the parties. First, the construction for which the plaintiff contends is similar but not identical to the construction which I would place on comparable words used in the context of the HRT Act. The essential difference between the two constructions lies in the plaintiff's emphasis upon the requirement that there be a transfer of property in order to come within the meaning of 'donation'. The construction which I have enunciated is similar, in the sense that it focuses upon the capacity of the relevant licence holder to determine the use to which the gametes will be put, but dissimilar in the sense that it does not require the licence holder's acquisition of such rights to be characterised as the transfer of property.

143 Second, there are also significant similarities between the construction which I have enunciated, and that ultimately proffered by the defendants. The construction for which the defendants contend and the construction I have enunciated would both apply to what I have described as Scenario 2, being the circumstance in which a man has conferred authority upon a licence holder to determine the use to which his stored sperm samples will be put. The essential difference in the defendants' construction and the construction I have enunciated arises from the defendants' focus upon the position of the person from whom the gametes were taken, with the consequence that any loss of control over the use of the gametes by that person results in there being a relevant 'donation'. So, for example, on the construction for which the defendants contend, in what I have described as Scenario 1, while both participants in the artificial fertilisation procedure remain alive, no donation of human reproductive material will be involved, nor will the licence holder be holding any 'donated material'. However, on the defendants' construction, as soon as one of the participants dies 'donation' will be involved (within the meaning of cl 6.5) and the material held by the licence holder will immediately become 'donated' material within the meaning of cl 6.6. It should be immediately noted that a construction of the HRT Act and the Directions which has the consequence that death, in and of itself, causes 'donation' to be involved, and converts material which was not 'donated' to 'donated' material, is not a consequence which one would ordinarily attribute to the legislature or the CEO, as the case may be, from the words used, taking into account any usual meaning of the words 'donation' or 'donated'.

144 On the other hand, the construction which I have enunciated focuses attention upon the position of the licence holder and would bring within the meaning of 'donation' any circumstance in which the licence holder has the capacity to determine the use to which relevant material will be put by reason of the authority conferred upon the licence holder at the time the material is provided. The construction which I have enunciated would not apply to the circumstances of this case for two reasons. First, the use to which the sperm can be put is constrained by the purpose for which they were removed by the operation of s 22 of the HTT Act and is, in this case, limited to the impregnation of the plaintiff. Second, the plaintiff, who has the right to direct the manner in which the sperm will be used, subject to the constraint imposed by s 22 of the HTT Act, has not conferred any general authority upon the relevant licence holder with respect to the use to which the sperm samples will be put.

145 It will be noticed that the construction which I have enunciated does not correspond exactly with the construction enunciated by either party. For the sake of completeness I should note that the principles of procedural fairness were satisfied by my enunciation of that construction in the course of argument.[57]

146 I do not accept the plaintiff's proposition that 'donation' should be construed as only occurring where there is a transfer of property without consideration. As I have already noted, at the time the HRT Act was passed, and at the time the Directions were published, there was, and remains, considerable uncertainty with respect to the ambit and operation of proprietary rights in relation to human tissue. There is nothing other than the legal meaning of the word 'donation' which would suggest that an evaluation of proprietary rights should determine whether and when 'donation' occurs in the context of the HRT Act and the Directions. But the context in which the word and its variants are used in the HRT Act and the Directions strongly suggest that such a construction was not intended, for the reasons I have already given, and the further reason that the HRT Act and the Directions are both intended to regulate the conduct and activities of licence holders who will be clinicians, not lawyers. It seems clear that in each of the HTT Act and the HRT Act the word 'donate' and its variants are being used in senses which correspond to common parlance, rather than legal terminology.

147 For these reasons I do not accept that portion of the plaintiff's submissions which focus attention upon the transfer of property rights. However, as I have already indicated, that portion of the plaintiff's contentions which focus upon the capacity of a licence holder to determine the use to which gametes will be put coincides with the construction I have enunciated.

148 It follows that the remaining issue to resolve is whether the construction for which the defendants contend should be preferred to the construction which I have enunciated. I will address that proposition by reference to the provisions of the Directions generally, and to cl 6.5 and cl 6.6 in particular.

149 However, before doing so, it is necessary to say a little of the guidelines published by the National Health and Medical Research Council under the title 'Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research' in 2007, and in revised form in 2017. Each party relies upon those guidelines. The plaintiff draws attention to the fact that the guidelines published in 2007 stated that 'clinics must not store or use gametes from deceased persons'.[58] However, in the 2017 edition of the guidelines, it is stated that 'clinics may facilitate the posthumous use of stored gametes or embryos to achieve pregnancy' if certain conditions are met.[59] However, while I would expect this change in approach to be of interest to the RTC and the CEO, it is irrelevant to the legal issues which I am required to resolve.

150 The defendants rely upon the guidelines to support the construction which they would place upon the term 'gamete provider' in the HRT Act. Given that both versions of the guidelines were published well after the passage of the Act and the promulgation of the Directions, they are irrelevant to the proper construction of terms used in those documents.

151 For these reasons, I place no reliance upon the NHMRC guidelines.

152 Clause 6.5 and cl 6.6 of the Directions are to be construed in their context. For that reason I will now address other portions of the Directions in which reference is made to the words 'donor' or 'donation' for the purpose of ascertaining whether those provisions shed any light upon the meaning properly given to those terms in cl 6.5 and cl 6.6. I will address the other provisions in which relevant terminology is used in the order in which they are found in the Directions.

153 The introduction to the Directions contains the following passage:

The Reproductive Technology Registers record information about donors of reproductive material and children born as a result of this donation. Access to identifying and nonidentifying information from the Registers by donors, recipients, offspring or researchers has been provided for under the Act, as this information may be of medical or social significance in the future.

154 In this passage the word 'donor' is apt to connote the second of my two scenarios, being a scenario in which there may well be a lack of information with respect to the identity of the person whose gametes have been used to produce a child. In the first of my two scenarios there will be no lack of information as the persons concerned will be known to, and indeed have selected, each other.

155 In the section of the Directions headed 'Interpretation' a distinction is drawn between 'AI' which means artificial insemination and 'DI' which means donor insemination. This distinction is apt to correspond to the distinction between the two scenarios I have posited above.

The licensee in relation to a storage licence which authorises the storage of donor sperm which is not collected on the premises, or sperm collected for artificial fertilisation procedures not involving donation, must ensure that

(a) the minimum standards for practice, equipment, staff and facilities comply with those required of good medical practice; and

(b) any requirements established under the Act are complied with.

157 Again, the distinction drawn by this clause between the storage of donor sperm and sperm collected for procedures which do not involve donation is apt to correspond to the distinction between the two scenarios which I have posited above.

A licensee may provide a referring doctor with information which has been obtained under the Act including the identity of any participant, donor or child born as a result of any artificial fertilisation procedure, in accordance with the standards of good medical practice.

159 The reference to 'donor' in this context is apt to correspond to the second of my two scenarios as in the first of those scenarios there will be no uncertainty or lack of information with respect to the identity of the participants in the artificial fertilisation procedure.

Before a licensee provides information about the identity of a participant, donor or child born as a result of a procedure to a referring doctor, the licensee or exempt practitioner must ensure that the referring doctor is aware of the confidentiality provisions in section 49 of the Act.

161 The same observation may be made in respect of this clause as with respect to the preceding clause, strengthened by the crossreference to s 49 of the HRT Act which, as I have already noted, only has practical significance in relation to the second of the two scenarios which I have posited.

A licensee who undertakes an artificial fertilisation procedure using donated gametes, embryos or eggs undergoing fertilisation that have been obtained from a storage licensee must provide to the storage licensee from whom the donated material was received the information as set out in Table 1.

163 It is unnecessary to set out Table 1 in detail and sufficient to observe that it requires the provision of a significant body of information. Again, the imposition of an obligation to provide that information to a storage licensee where the use of donated material is involved is consistent with the distinction between my scenarios, as it is only the latter scenario in which there will be any shortage of information available with respect to the identities of the participants.

164 Clause 2.6 provides that each licensee must provide to the CEO information set out in Table 2 that is relevant to each artificial fertilisation procedure undertaken. It is not necessary to set out Table 2 in full, and is sufficient for present purposes to observe that the table draws a distinction between artificial fertilisation procedures in which there is 'no donation involved' and, those which involve donation. Again, that distinction is apt to correspond to the distinction between the two scenarios I have posited.

A storage licensee must not provide semen to a medical practitioner for DI unless that practitioner is currently exempt under the Act or where there is Council approval for the export under Direction 6.6.

166 This provision is consistent with the restrictions upon the use of donated sperm imposed by cl 6.5 and cl 6.6.

A storage licensee must not provide donated human reproductive material to any practice licensee, storage licensee, exempt practitioner or any other person under their supervision, unless that person has provided the information set out in direction 2.5 in respect of donated reproductive material previously provided by the storage licensee and has done so as soon as practicable after that material was provided.

168 Again, the fact that this clause only applies to donated material is consistent with the distinction between the two scenarios I have posited, given that it is only the second scenario, in which donation is involved, in which there is likely to be a lack of information with respect to the identity of the participants in the artificial fertilisation procedure.

169 Clause 2.13 provides that a licensee is not required to supply to the CEO for inclusion in the Registers information relating to the identity of the donor of reproductive material used in respect of human embryos already in store at the time the HRT Act came into operation, if the donor did not agree to the disclosure of his or her name at the time the gametes were provided, and in respect of the identity of donor gametes in store at the time the Act came into operation, if the donor did not agree to the disclosure of his or her name at the time the gametes were provided. This clause is only consistent with the proposition that the word 'donor' relates to the second of the two scenarios I have posited, as it is only in that scenario that there would be any need to protect and maintain the confidentiality of the person providing the relevant reproductive material.

A licensee, including an exempt practitioner, must at the time of registration of information, provide the reasons for noninclusion of identity of the donor.

171 Again, as with the preceding clause, this clause is consistent with the proposition that the word 'donor' can only be concerned with the second of the two scenarios I posited, because that is the only circumstance in which there will be any doubt or uncertainty with respect to the identity of participants engaging in the procedure.

172 Clause 2.15 provides that a storage licensee must provide information to the CEO in respect of each excess ART embryo that has been 'donated for research'. Although a provision relating to donation of reproductive material for research purposes is of limited assistance to the resolution of the issues which arise in this case, the use of the word 'donated' in this context is consistent with the construction I have enunciated, to the effect that it connotes a circumstance in which the use to which the reproductive material will be put is under the control of the licence holder.

173 Clause 2.18 specifies the information which licensees must provide in an annual report to the CEO. Specific information must be supplied in respect of 'donated semen'. That requirement is apt to recognise the need for additional information in a circumstance in which the licence holder has the capacity to determine the use to which donated semen will be put.

174 Part 3 of the Directions contains various provisions relating to consent. The provisions distinguish, on many occasions, between circumstances involving the use of donated gametes or other reproductive material and circumstances not involving use of donated material. Those distinctions are apt to correspond to the distinction between the two scenarios I have posited and, in particular, to the circumstance in which the use to which donated material will be put is under the control of the licence holder.

Any person to whom the licence applies, including an exempt practitioner, must ensure that, prior to the donation of gametes for their use in an artificial fertilisation procedure, effective consent is given by the gamete provider and the gamete providers current spouse or de facto partner (if any) to the donation and use of the gametes.

176 This clause can only have been intended to apply to a circumstance in which the gametes provided to the licence holder are intended to be used in a fertilisation procedure not involving the spouse or de facto partner of the gamete provider. It follows that this clause can only apply to the second scenario I have posited, and not the first. I would also observe that it is a clause which has no sensible application to a circumstance in which gametes are extracted posthumously in order to fertilise gametes supplied by the spouse or de facto partner of the deceased.

177 Part 4 of the Directions is concerned with the information which must be provided prior to consent. The part distinguishes between the information which must be provided to consent to any fertilisation procedure, and the additional information which must be provided by a licensee before consent is obtained from the donors of donated human reproductive material, including information with respect to information that is included on the registers in relation to the biological parentage of any child born as a result of the use.[60] This distinction is only consistent with an assumption that donated material will be used in circumstances analogous to the second scenario which I have posited, and in which there may be a lack of information with respect to the identity of those who provided gametes which resulted in the birth of a child.

178 Part 5 of the Directions is concerned with assistance to be provided with decision making and counselling. As with other parts of the Directions, it distinguishes between the information to be provided in cases involving donors of reproductive material, and other cases - a distinction which is apt to correspond to the distinction between the scenarios I have posited.

179 Further, the clauses within Part 5 which specifically relate to the information to be provided when a recipient is unknown to the donor reinforce that distinction. Although cl 5.8 makes provision for a circumstance in which a potential donor is known to the recipients of the reproductive material, it does so in terms which clearly connote that the provider of the material is aware that the material will be used for the purposes of another person or couple, which explains the description of the provider as a 'donor'.

180 Part 6 is concerned with the transfer and storage of gametes and embryos. I have already referred to, and set out, cl 6.5 and cl 6.6. Clause 6.2 and cl 6.3 are in the following terms:

*6.2 Imported donated reproductive material

Accept as approved under Direction 6.3, a person to whom the licence applies must not, without the approval of the Council, accept from outside the State for use in an artificial fertilisation procedure, gametes, embryos or eggs undergoing fertilisation where donation of human reproductive material has been involved, if the information that would be required under the Act for the Registers, had the donated human reproductive material been collected in this State, is not available to him/her.

*6.3 Council may approve import without information for Registers

The Council may, on compassionate grounds, approve the import of donated gametes, embryos or eggs undergoing fertilisation where the required information is not available.

181 Again, these provisions are only consistent with an assumption that additional information will be required where donated material is involved, because of issues with respect to the identities of the persons whose gametes have resulted in the birth of a child. That assumption is only consistent with scenarios analogous to the second scenario I have posited, not the first.

182 Part 7 is concerned with eligibility and assessment. It contains provisions relating to minimum ages and assessment to ensure lack of coercion in circumstances involving donation which do not apply to circumstances not involving donation. These provisions are consistent with the distinction drawn between those circumstances throughout the Directions, and are apt to correspond to the distinction between the two scenarios I have posited.

183 Part 8 deals with a number of specific clinical practice issues. As with other parts of the Directions, a number of its provisions are only concerned with circumstances involving donors. These include a provision restricting the number of recipient families to five for each donor without the prior approval of the RTC, and a provision restricting the use of reproductive material donated prior to the commencement of the Human Reproductive Technology Amendment Act 2004 (WA) unless a donor has been given information with respect to the changes to the Act in relation to the rights of children to be given identifying information about the donor. These provisions are only consistent with an assumption that they will be applied in circumstances analogous to the second scenario I have posited, and are entirely inconsistent with the first scenario I have posited.

Any person to whom the licence applies must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider.

185 The defendants accept, properly in my respectful view, that this clause does not prevent the clinic currently storing the sperm samples taken from Gary from acting in accordance with the plaintiff's directions to transfer those sperm samples to another clinic in the ACT where those sperm samples can be used consistently with the law of that Territory.

186 There are a number of forms and tables included within the Directions which also contain reference to the words 'donor' and 'donation'. So, for example, Form 4 is headed 'Donor Information' and requires detailed information with respect to the health and genealogy of a donor. Form 5 is headed 'Donor Insemination Treatment' and Form 6 is headed 'Sperm Donor: Identifying Information'. Form 7 is headed 'DI Recipient Identifying Information' and is required for each recipient of donor sperm used in donor insemination. These forms are all consistent with the word 'donor' identifying circumstances analogous to the second scenario I have posited.

187 Form 10, to which reference is made in cl 6.6, provides the form of the undertaking required in relation to the export of donated human reproductive material from Western Australia, and is to be used if and when consent is given by the RTC pursuant to cl 6.6. As might be expected from the terms of cl 6.6, the form requires the recipient of approval to undertake to supply all the information that would be supplied if an assisted fertilisation procedure was carried out using donated material in Western Australia. Again this is consistent with the term 'donated' in cl 6.6 connoting circumstances analogous to my second scenario.

188 Schedules to the Directions contain detailed tables of information that is required to be provided in differing circumstances. As with the Directions themselves, the Schedules distinguish clearly between cases in which donors or donated material is involved, and other cases, in relation to the ambit of the information required. Other parts of the Schedules require information to be supplied by licensees in respect of semen stored for donation. Again the distinction drawn in these schedules is apt to correspond to the distinction between the two scenarios I have posited.

189 It will be apparent from this review of the various references in the Directions to 'donor' or 'donation' that, in a number of instances, those terms are used in circumstances which could only relate to scenarios analogous to the second scenario I have posited - namely, the circumstance in which the licence holder had the authority to determine the use to which the donated material would be put. In many other instances, the use of the terms 'donor' and 'donation' is consistent with that assumption. In perhaps two instances the use of the word 'donor' is somewhat equivocal.

190 As I have already noted, there is significant overlap between the construction for which the defendants contend and the construction which I have enunciated. The construction for which the defendants contend would bring my Scenario 2 within the meaning of 'donation', because the gamete provider has surrendered control of the gametes to the licensee, by the authority given to the licensee at the time the gametes were provided. Accordingly, the defendants' construction would, to that extent, correspond with the distinctions I have drawn in the operation and application of the HRT Act and the Directions.

191 However, the essential distinction between the two constructions is that the defendants' construction would apply to all circumstances in which the gamete provider has lost control over the gametes, for whatever reason, rather than being limited to circumstances in which authority to determine the use to which the gametes will be put has been given (or donated) to the licensee. So, on the defendants' construction, any loss of control, however it comes about, constitutes a 'donation'.

192 The defendants' contention that the death of a person from whom gametes have been taken in and of itself produces the result that the circumstance becomes one of donation, and material previously provided becomes, by reason of the death alone, 'donated material' would, in many instances in which the terms have been used in the HRT Act and in the Directions, produce consequences which are as improbable and unworkable as in the context of cl 6.5 and cl 6.6. To take just two of many possible examples, the proposition that s 49 of the HRT Act or cl 3.3 of the Directions applies to any circumstances in which the gamete provider is dead produces nonsensical consequences.

193 For the sake of completeness it is desirable to specifically address the written and oral submissions advanced on behalf of the defendants with respect to Question 2.

194 I have already addressed and rejected the defendants' submission that the HRT Act is only concerned with the removal of tissue and not its subsequent use. Similarly, I have also addressed and rejected the defendants' submissions based upon s 25(a) of the HRT Act.

195 Returning specifically to cl 6.5 and cl 6.6, on the defendants' construction those clauses have no application to my first scenario, as long as both participants are alive. In that circumstance, stored gametes can be removed from the State without any need for the approval of the RTC. However, on the defendants' case, if a participant dies, export approval is required, because death, in and of itself, gives rise to a 'donation'. As I have already noted, I am unaware of any possible meaning of the word 'donate' or its variants which would render it applicable, without more, to the fact of death.

196 I have briefly noted the defendants' submission to the effect that the word 'donation' and its variants in the Directions should be construed in the same way as in the HRT Act, which in turn should be construed in the same way as the word and its variants are used in the HTT Act. The first limb of that submission should be accepted, but the second limb rejected. As I have noted, the word 'donation' is only used in the HTT Act on four occasions - each time in a heading. On each of those occasions, the word is used in a very different context to the repeated use of that expression in the HRT Act, and the prolific use of the expression in the Directions. For example, the HTT Act distinguishes between the removal and donation of tissue during a person's life, and the posthumous removal and donation of tissue. As I have already noted, no reference to posthumous removal can be found in the HRT Act or the Directions.[61]

197 Question 2 is concerned with the proper construction and effect of the Directions. Because the Directions expressly provide that terms used within them bear the same meaning as in the HRT Act, the interpretation of the those terms within the HRT Act is directly relevant to Question 2. However, because of the different contexts of the HRT Act and HTT Act in general, and the significant differences in the specific contexts in which the words 'donor' and 'donation' are used in the HRT Act and the Directions, as compared to the very limited number of occasions upon which the word 'donation' is used in the HTT Act, the issues raised with respect to the proper construction of the word in the HTT Act are a distraction from the questions which must be addressed in order to resolve Question 2.

198 The defendants submit that unless cl 6.5 and cl 6.6 of the Directions are construed as they contend, the regulatory scheme of the HRT Act will be undermined. That submission must be rejected. The Directions generally, and cl 6.5 and cl 6.6 in particular, only apply to licence holders. Neither these clauses nor the Directions generally confer any rights or impose any obligations upon persons who are not licence holders, such as the plaintiff, or upon the donors or recipients of human gametes. As I have noted, senior counsel for the defendants accepted, quite properly, that cl 6.5 and cl 6.6 have no application to a circumstance analogous to the first scenario I posited - namely, the scenario in which the persons whose gametes were to be matched were known to and chosen by each other subject to senior counsel's proviso to the effect that both of those persons remain alive. With respect to senior counsel, as I have already noted, it is difficult to identify any process of construction relying upon any meaning that might be given to the word 'donation' which would have the consequence that death, in and of itself, gives rise to a circumstance involving 'donation', and converts material which was not 'donated' into 'donated' material.

199 If cl 6.5 and cl 6.6 are construed as applying to circumstances analogous to the second scenario I have posited, their purport and effect is clear - they maintain the integrity of the provisions within the HRT Act relating to the provision of information with respect to donors for insertion into the registers which enable children born as a result of the use of such procedures to identify their biological parents.

200 To the extent that the defendants' focus upon loss of the continuing control of the gamete provider includes a circumstance in which the licence holder has the capacity to determine the use to which the donated material will be put, it is consistent with the construction which I favour. However, the defendants' proposition that any lack or loss of continuing control on the part of the gamete provider in and of itself means that there is a 'donation' cannot be sustained by any sensible meaning attributed to that term. So, as I have repeatedly observed, it is impossible, by any stretch of language, to see how the death of a gamete provider can have the consequence that a circumstance which did not involve donation becomes a circumstance involving donation. Nor, in the absence of any reference to posthumous extraction of gametes in either the HRT Act or the Directions, or any evidence that such matters were within the contemplation of either the Parliament or the CEO at the time the Act was passed or the Directions promulgated, is there any reason to suppose that cl 6.5 and cl 6.6 were directed to, or intended to apply to, the circumstances of this case. To the contrary, it might reasonably be inferred that in cases of posthumous extraction, any protection of the interests of the deceased are to be found in the HTT Act and, in particular, s 22 of that Act. In this case, there was compliance with s 22 of the HTT Act, and the course proposed by the plaintiff is entirely consistent with the provisions of that section.

201 For the reasons I have given, cl 6.5 and cl 6.6 of the Directions do not apply to the circumstances of this case. The circumstances giving rise to the storage of sperm posthumously extracted from Gary do not involve the 'donation' of gametes, nor are those samples 'donated material' within the proper construction of those clauses. It follows that Question 2 should be answered in the negative.

202 As I have noted, the parties are agreed, consistently with authority,[62] that the court should not investigate and decide constitutional questions unless their resolution is necessary for the determination of a case. Because the affirmative answer to Question 1 and the negative answer to Question 2 inevitably result in the plaintiff being entitled to the relief which she seeks, it is unnecessary and inappropriate to resolve Question 3.

203 In conclusion, for the reasons that I have given, the issues which the parties agreed should be determined in order to resolve the plaintiff's claim should be resolved as follows:

• Question 1: Yes;
• Question 2: No;
• Question 3: Unnecessary to decide.

204 I will invite submissions from the parties as to the relief appropriately granted to give effect to these conclusions.

[1] The current CEO is the first defendant.

[3] For that reason it is convenient, albeit imprecise, to refer to the first defendant, the CEO, and the third defendant, the State of Western Australia, as 'the defendants'.

[4] Affidavit of Deborah Kaye Andrews, pages 12, 15, 25, 32, 45.

[6] Affidavit of Andrews, pages 33 34; plaintiff's first affidavit, page 19.

[8] Consistently with established authority.

[13] Described in the HTT Act as 'non-regenerative tissue'.

[15] See Y v Austin Health [2005] VSC 427; (2005) 13 VR 363 [39]; Edwards; Re Estate of Edwards [2011] NSWSC 478; (2011) 81 nNSWLR 198 [32].

[16] Interpretation Act 1984 (WA), s 32.

[17] Of course this is not to say that there is not an explanation but simply that none is known to the parties or the court.

[18] HRT Act, s 18(1)(f).

[19] HRT Act, s 3(8).

[20] Or, in certain circumstances, upon 'any person to whom the licence applies'.

[21] HRT Act, s 34.

[22] HRT Act, s 21(c) and (h).

[23] HRT Act, s 26(1)(c).

[24] Conferred by s 31 of the HRT Act.

[29] H v P [2011] WASCA 78 [71] - [77] (Murphy JA).

[30] See, for example, Hardcastle R, Law and the Human Body - Property Rights, Ownership and Control (2009); Edelman J, 'Property Rights to our Bodies and their Products' (2015) 39(2) UWA Law Review, 47, 48; Miller S, 'Importing and exporting gametes and embryos under the Infertility Treatment Act 1995 (Vic): an unconstitutional restraint on free trade?' (2003) 11 Journal of Law and Medicine 239.

[31] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 [17]; Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 [135].

[32] Leaving land out of consideration.

[36] Hardcastle R, Law and the Human Body - Property Rights, Ownership and Control (26).

[37] The case most often cited in support of the principle is Williams v Williams (1882) 20 ChD 659, 662 - 663, although there are many subsequent decisions recognising the principle.

[38] Edelman J, 'Property Rights to our Bodies and their Products' (55).

[39] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

[41] Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331.

[43] Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1.

[44] See, however, the more recent decision in Holdich v Lothian Health Board [2013] CSOH 197 in which the decision in Yearworth was construed more narrowly.

[45] Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; [2011] 2 Qd R 207.

[51] Re H, AE (No 2) [2012] SASC 177.

[53] Which is not defined by the HRT Act.

[54] As I have noted earlier, the Directions also impose obligations on 'any person to whom the licence applies' in certain circumstances.

[55] Western Australia, Government Gazette, No 201 (30 November 2004) 5422.

[58] Ethical guidelines for the clinical practice of ART, NHMRC (2007) 8.4, page 38.

[59] Ethical guidelines on the use of ART in clinical practice, NHMRC (2017) 8.22.1, page 81.

[61] The only references to posthumous matters contained in the Directions are restricted to the posthumous use of the gametes.

[62] See, for example Knight v Victoria [2017] HCA 29; (2017) 91 ALJR 824 [32] [33].