Griffin v Attorney General of New South Wales

Parties: Stevii Morghan Griffin (Plaintiff)
Attorney General of New South Wales (Defendant)

Representation: Counsel:
L Katsinas (Plaintiff)
J Davidson (Defendant)
Solicitors:
Kalpaxis Legal (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2025/00096806

Publication restriction: Nil

JUDGMENT

1. By an amended summons filed in Court on 5 May 2025 the plaintiff sought orders for the release of a tissue sample recovered from the body of her late de facto husband, Brodie Ryan Davidson, for the purpose of her transporting the sample to Queensland for its use there in IVF treatment and assisted reproductive technology.

2. The Attorney General of New South Wales was granted leave to intervene in the proceedings on 14 March 2025 and neither consents to nor opposes the relief sought. Rather, the Attorney General has made submissions intended to assist the Court in the absence of a contradictor, for the purpose of ensuring any orders are made in accordance with the legislative scheme set out in the Human Tissue Act 1983 (NSW) (HT Act) and the Assisted Reproductive Technology Act 2007 (NSW) (ART Act). The Court recognises the assistance provided by Ms J Davidson, counsel for the Attorney General.

3. On 5 May 2025, I made orders granting the relief sought in the amended summons and indicated that I would provide my reasons later, which I now do. The orders made were relevantly as follows:

4. Upon request by the plaintiff, Dr Derek Lok and Connect IVF are entitled to release to the plaintiff the tissue sample recovered from the body of her late de facto husband, Brodie Ryan Davidson on or about 10 March 2025 for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to Queensland for the purposes of its use in accordance with the laws of Queensland.

5. Upon receipt of the same from Dr Derek Lok, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to Queensland for the purposes of its use in accordance with the laws of Queensland.

NOTES:

3. The plaintiff intends to transport the tissue sample to the Queensland Fertility Group of Level 1, 203 Wharf Street, Spring Hill, Queensland for its use in accordance with the laws of Queensland, using the services of the courier Dangerous Goods International;
4. Queensland Fertility Group is currently liaising with Connect IVF to organise the transport of the tissue sample using that courier.

Background

4. The plaintiff and the deceased had been in a de facto relationship since about August 2023. The plaintiff’s evidence is that they had often spoken about having a family. This is corroborated by a text she received from the deceased and the evidence of the deceased’s mother who provided an affidavit to the Court and supports the plaintiff’s application.

5. On about 8 March 2025 the plaintiff found the deceased in bed unresponsive and it appears that tragically he had passed away in his sleep. The death certificate, which I note records the plaintiff as the de facto spouse of the deceased, states the cause of death as being ‘mixed drug toxicity’.

6. On 10 March 2025 the plaintiff spoke with Dr Derek Lok of Connect IVF who informed her that he could attend Lidcombe morgue in order to retrieve the sperm of the deceased and that Connect IVF could store the sperm until she was ready to talk about the options as to its use. On the same day, the Deputy State Coroner Derek Lee provided his written consent for the removal of the sperm pursuant to s 25 of the HT Act.

7. During the evening of 10 March 2025 the plaintiff commenced proceedings in this Court seeking a declaration that she was entitled to the possession of the sperm of the deceased and orders for its extraction and storage. The matter came before me as Equity Duty Judge and later that evening I made orders, ex parte, relevantly (a) declaring that the plaintiff was entitled to the possession of the sperm of the deceased; (b) authorising Dr Lok to extract the sperm of the deceased and store it in an assisted reproductive facility and (c) that the sperm of the deceased be stored pending further order at the premises of Dr Lok under his care, control and supervision or such other persons as authorised by him at Connect IVF in Sydney or such other premises in Sydney as authorised by him (10 March orders).

8. On 11 March 2025 the plaintiff was notified by Connect IVF that a sperm sample had been extracted and cryo-preserved, and was suitable for clinical use. Connect IVF is the trading name of IVF By Next Practice Pty Ltd which is a registered ART provider for the purposes of the ART Act.

9. On 10 April 2025 the plaintiff received a letter from Dr David Molloy, a gynaecologist and specialist in reproductive medicine who is a director of the Queensland Fertility Group (QFG), stating that QFG would be happy to receive the sperm and assist in its use as legally possible. He also advised that transfers of human reproductive material are common and frequent and usually completed by road transport, and recommended the use of a courier firm called Dangerous Goods International (DGI). QFG are currently in the process of liaising with Connect IVF for the collection of the tissue sample by DGI for the purpose of its transport by road to QFG in Queensland following the making of orders by the Court to authorise this to occur.

10. On 29 April 2025 the plaintiff received a letter from QFG stating that the usage of the tissue sample ‘has been reviewed by Virtus Health Chief Legal and Risk Officer and approved in principle’. QFG is a fertility clinic affiliated with Virtus Health. The letter appears to be referring to legislation in Queensland dealing with the use of gamete retrieved from a deceased person, including the Assisted Reproductive Technology Act 2024 (Qld)**. Although I note that some of the provisions of that Act have not yet commenced, the legislative framework governing this topic in Queensland was not a matter explored in the parties’ submissions. Ultimately, whether the tissue sample can be used in Queensland for IVF treatment will be a matter to be determined in accordance with Queensland law.

11. The plaintiff has deposed that if the orders sought are made she intends to use the tissue sample in accordance with the laws of Queensland.

Consideration

12. The 10 March orders which authorised Dr Lok to extract sperm from the deceased and store it under the care, control and supervision of Connect IVF were made on the basis that the extraction was authorised by s 24(3) of the HT Act. That provision authorises the removal of ‘tissue’ (defined in s 4(1) in a manner which includes sperm) from the body of a deceased person located at a place other than a hospital for the purpose of its use for medical purposes or scientific purposes if: (a) the written authorisation of a ‘senior available next of kin’ has been provided, and (b) where (as here) a coroner has jurisdiction to hold an inquest, the consent of a coroner to the removal of the tissue from the body of the person has been obtained as required by s 25 of the HT Act.

13. In the present case, the plaintiff as the de facto spouse of the deceased is the ‘senior available next of kin’ and she gave her written authorisation by her affidavit of 10 March 2025 to the removal of the sperm for assisted reproductive procedures. That is a use for ‘medical purposes or scientific purposes’: see Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 at [63]. As noted above, the consent of a coroner was obtained.

14. The 10 March orders followed the approach taken in a number of previous cases in this Court, (including Noone v Genea [2020] NSWSC 118; Noone v Genea Limited [2020] NSWSC 1860 at [37] – [47]; and In the matter of an Application by Adams (a pseudonym (No 2) [2021] NSWSC 794 at [39]), and left to a later stage the making of orders regarding the use to be made by the plaintiff of the tissue extracted from the deceased. I note that there is no application to revoke or vary the 10 March orders.

15. The Court now has further evidence regarding the intended use of the tissue sample. As noted earlier, this is for its transportation to Queensland for the purpose of enabling its use by the plaintiff for IVF treatment. The proposal for the plaintiff to transport the tissue sample to Queensland for its use in IVF treatment there rather than in New South Wales is based on the view that the ART Act would prevent the use of the tissue sample for IVF treatment in New South Wales because the written consent of the deceased (as the relevant ‘gamete provider’) was not obtained: see Noone v Genea Limited at [48]-[51].

16. As a consequence of the 10 March orders and the subsequent removal, cryo-preservation and storage of the tissue, the plaintiff has obtained the property in the tissue sample and provided that she transports the tissue sample to Queensland for its use in IVF treatment there she will not offend the provisions of the ART Act and nothing in that Act (or any other relevant law of New South Wales) will prevent the Court from making the orders sought: Chapman at [76]-[85]; Noone v Genea Limited at [37]-[51]; Adams at [34]-[42]; Hossein**i v Genea Limited {2021] NSWSC 1568 at [55]-[65].

17. The grant of the relief sought is discretionary. In light of the evidence before the Court and noting that the Attorney General does not oppose the orders sought, I am satisfied that it is appropriate that the Court make orders permitting the plaintiff to transfer the tissue sample to Queensland for its proposed use there in her IVF treatment. In my view each of the discretionary considerations referred to in Adams at [43] points in the present case to the grant of the relief sought. I note also that the plaintiff has told the Court that she proposes to transfer the sample from Connect IVF to QFG using a suitably qualified courier and intends to use the sample in accordance with the laws of Queensland, as recorded in the notations to the orders made by the Court.

Desirability of legislative clarification

18. The storage of the tissue sample by Connect IVF pending its transport to Queensland is not unlawful due to the 10 March orders. However, Ms Davidson pointed out in her written submissions that the storage of the tissue sample by Connect IVF, an ART provider, would absent the March orders have been in breach of s 25 of the ART Act due to the absence of written consent of the gamete provider (the deceased). It is odd that s 24 of the HT Act would permit the extraction of gamete without the written consent of the gamete provider but s 25 of the ART Act would then prohibit its storage by an ART provider for any purpose, given that it is ART providers who have the sophisticated cryo-preservation facilities which are required to store gamete. This difficulty was noted by Fagan J in Chapman at [68]-[74]. The apparent conflict would be resolved if, on the proper construction of the ART Act, the senior available next of kin who has lawful possession of the gamete were treated as the ‘gamete provider’ for the purposes of the ART Act: see In the matter of an Application by Vernon [2020] NSWSC 608 at [74]-[85]. However, the correctness of this construction has been doubted: Noone v Genea Limited at [51]; Hosseini at [24]-[44].

19. The apparent conflict between s 24 of the HT Act and s 25 of the ART Act is an important issue for two reasons. First, applications to the Court of the kind which led to the 10 March orders are generally made at short notice, ex parte and in circumstances of extreme urgency and will likely be heard by a duty judge without prior experience in this area of the law, who will have as their primary objective the preservation of the status quo. Second, while the ART Act will prohibit the use of such gamete by an ART provider in New South Wales absent the written consent of the gamete provider (who is deceased), it does not prohibit the transport of the gametes to another Australian jurisdiction where the absence of the written consent of the gamete provider does not preclude the use of gametes in assisted reproduction technology. In circumstances where the death of the gamete provider is unforeseen, applications of the kind which led to the 10 March orders are unsurprising and can be expected to recur.

20. It would be desirable for consideration to be given by Parliament to clarifying the interaction of the HT Act and the ART Act by an appropriate amendment of that legislation to avoid this apparent conflict, as pointed out in Chapman at [73]-[74].

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