Hosseini v Genea Limited

Supreme Court of NSW|2021-12-02|Before: Schmidt AJ

laintiff) Genea Limited (First Defendant) Attorney General for New South Wales (Second Defendant) Representation: Counsel: E James with A Katsoulas (Plaintiff) J Buncle (First Defendant) J Davidson (Second Defendant)

Solicitors: Catherine Henry Lawyers (Plaintiff) Herbert Smith Freehills (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2021/139831

Should declarations and orders be made?

For the reasons which follow, I am satisfied that the Court's discretion to make the orders Ms Hosseini pressed must be made.

The Human Tissue Act

Before the sample was obtained, Ms Hosseini obtained the necessary consent for its removal from Mr Baratikeshe's body after his death from the Deputy Coroner under s 25(5) of the Human Tissue Act, it being "tissue" as defined in s 4(1) of that Act.
Section 24(3) entitled Ms Hosseini to authorise the removal of the sample, she being the "senior available next of kin", relevantly defined in s 4(1) to be the spouse of a deceased person, unless it appeared to her, having made "such inquiries as are reasonable in the circumstances", that Mr Baratikeshe had, during his lifetime, expressed an objection to the removal of tissue from his body after his death. There was no suggestion that he had ever expressed such an objection.
It follows that in the circumstances of his death, this Act did not require Mr Baratikeshe's prior consent to the removal of the sample which Ms Hosseini authorised.
Once removed the sample obviously had to be stored. This Act does not regulate how tissue is to be stored. It does provide that the retention of tissue lawfully removed from the body of a person, living or deceased, "in prescribed circumstances for such period as the regulations authorise for the purpose of obtaining an authority under this Act to use the tissue for therapeutic, medical or scientific purposes", is not prohibited: s 34(1)(b2). But the Human Tissue Regulation 2020 does not deal with this or with its storage.
This Act also does not prohibit "the provision of a gamete by a living person to an ART provider in accordance with the Assisted Reproductive Technology Act 2007": s 34(1)(b4). But it does not deal with provision of a gamete removed from the body of a deceased person, although that may fall within s 34(1)(b2).
Trade in such tissue under a contract or arrangement for valuable consideration is, however, made an offence under s 32 and s 34(1) deals with various other uses of tissue after removal. There is no suggestion that what Ms Hosseini proposes to do with the sample involves any prohibited trade or raises the provisions of s 34.

The Assisted Reproductive Technology Act

The operation of all aspects of this legislative scheme must be considered in light of its objects, specified in s 3 to be: (a) to prevent the commercialisation of human reproduction, and (b) to protect the interests of the following persons: (i) a person born as a result of ART treatment, (ii) a person providing a gamete for use in ART treatment or for research in connection with ART treatment, (iii) a woman undergoing ART treatment.
Section 18 makes it an offence for an ART provider to use a gamete to create an embryo outside the body of a woman, except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. Section 19 makes it an offence to provide ART treatment to a woman using a gamete, except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent in relation to specified ART treatment. It is also an offence under s 20 to supply a gamete to another person, except with the gamete provider's consent; under s 21, to export a gamete without such consent; and under s 25, to store gametes without consent.
Under s 23 use of a gamete for ART treatment after the provider's death also involves an offence, unless the ART provider knows or believes on reasonable grounds that the gamete provider consented before death.
There are also other offences dealt with in Division 3 which it is unnecessary to refer to. Other parts of the Act regulate ART providers; the provision of their services; record keeping and establishment of a central register, to permit access to specified information which must be retained; surrogacy arrangements; retention and access to other information not kept in the central register and enforcement.
The giving of consent is regulated by ss 16 and 17. They provide: 16 Interpretation In this Division: (a) consent of a gamete provider means the gamete provider's consent given under section 17 in relation to a gamete as modified or revoked in accordance with that section, and (b) a requirement that any matter be consistent with a gamete provider's consent is, if gametes from more than one gamete provider are involved, a requirement that the matter be consistent with each gamete provider's consent. 17 Giving, modifying and revoking consent (1) A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice, in the approved form (if any), setting out the gamete provider's wishes in relation to the gamete (the gamete provider's consent). (2) A gamete provider's consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider. (3) A gamete provider may modify or revoke his or her consent by giving written notice, in the approved form (if any), of the modification or revocation of consent to: (a) the ART provider that obtained the gamete from the gamete provider, or (b) any ART provider that is, or has ever been, in possession of the gamete or embryo to which the modification or revocation of consent relates. (4) A consent may be modified or revoked at any time up until: (a) in the case of a donated gamete - the gamete is placed in the body of a woman or an embryo is created using the gamete, or (b) in the case of a gamete that is used to create a donated embryo - the embryo is implanted in the body of a woman, or (c) in any other case - the gamete is placed in the body of a woman or an embryo created using the gamete is implanted in the body of a woman. (5) As soon as practicable after an ART provider is given written notice by a gamete provider of the modification or revocation of his or her consent, the ART provider must give written notice of the modification or revocation to any other ART provider to which the ART provider has supplied the gamete or any embryo created using the gamete. (6) As soon as practicable after an ART provider is given written notice by another ART provider of the modification or revocation of a gamete provider's consent, the ART provider must give written notice of the modification or revocation to any other ART provider to which the ART provider has supplied the gamete or any embryo created using the gamete. (7) Except as provided by section 17A, a modification or revocation of consent takes effect in relation to an ART provider as soon as the ART provider is given written notice of the modification or revocation in accordance with this section. (8) A reference in this section to a donated gamete does not include a reference to a gamete that becomes a donated gamete only after being used to create an embryo.
In Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 ("Chapman") Fagan J considered that absent a gamete provider's written consent prior to death, use of a gamete collected after death for ART treatment was prohibited. But there is no required form by which such consent must be given.

Ms Hosseini's case

There was no written consent given by Mr Baratikeshe before his death to the removal of the sample from his body or its later use for ART treatment.
Ms Hosseini's case is that despite this, her written authorisation under the Human Tissue Act, together with the consent of the Coroner given before the sample was removed, is sufficient to satisfy the consent requirements of the Assisted Reproductive Technology Act, for example in s 23. That made Mr Baratikeshe's prior written consent for the use of his gamete for ART treatment after his death unnecessary.
In the alternative, that it should be accepted that it was Ms Hosseini, not Mr Baratikeshe, who was the gamete provider, with the result that it is her consent which will satisfy the requirements of s 23.

Is Ms Hosseini the gamete provider?

"Gamete" is defined in s 4 to mean "a human sperm or a human ovum" and "gamete provider" to mean in relation to a gamete, "the individual from whom the gamete has been obtained and, in relation to an embryo, means an individual from whom a gamete used to create the embryo was obtained". It is women's bodies which produce human ovum and male bodies which produce human sperm. Thus, the definition envisages in the case of an embryo, that more than one gamete will be used in its creation.
In s 4 it is also provided that "obtain a gamete from a gamete provider includes receive a gamete from a gamete provider". This provision thus expands the ordinary meaning of the word "obtain", which is defined in the Online Macquarie Dictionary to be: "obtain: verb (t) 1. to come into possession of; get or acquire; procure, as by effort or request"
It follows, in the case of sperm, that it may be obtained from the gamete provider, both when it is received from the man who ejaculated it and when it is removed from a man's body as the result of a procedure undertaken before or after death. In issue is whether a gamete may also be obtained from another individual who later comes to have lawful possession or ownership of the gamete, in this case after lawful removal from an individual's body after death.
In In the matter of an Application by Vernon [2020] NSWSC 608, Rothman J considered the provisions of both the Human Tissue Act and the Assisted Reproductive Technology Act and the different terms which they utilise. The undefined term "removal of human tissue" in s 24 of the former Act and the definition of "obtain a gamete" in s 4 of the latter, which is used in many of its provisions, including s 23.
There is no question that given their subject matter and history, which Rothman J discussed, these legislative schemes must be construed harmoniously and consistently with the language used and their purposes: Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70].
Having considered the statutory provisions, his Honour concluded that because once removed from a body sperm became property, the result was that under the Assisted Reproductive Technology Act "a gamete provider may change and there may be a chain of ownership or lawful possession of the gamete". In the result, a gamete may be obtained from an individual other than the person whose body produced the gamete: at [81]. His Honour reached that conclusion, taking the view that: "[58] While the person from whom a gamete is removed is plainly included in the definition of "gamete provider", there is no reason that a person otherwise lawfully in possession of a gamete, who provides consent in writing in accordance with the ART Act, is not a "gamete provider" to the ART provider under the ART Act."
Although his Honour did consider that s 23, on its face, dealt "with the gamete provider as one restricted to the person from whom the gamete was removed", he concluded "that is not necessarily the situation": at [83].
While Ms Hosseini and Genea urged the conclusion that his Honour was correct, on the Attorney's approach other provisions of the Act which Rothman J did not consider, preclude his Honour's conclusions being accepted.
In Noone v Genea Limited [2020] NSWSC 1860 ("Noone"), Beech-Jones J, as he then was, doubted the correctness of Rothman J's conclusions. But he found it unnecessary to resolve the matters which had been debated and which he considered in the Attorney's case had considerable force, for reasons earlier explained: at [51].
In this case, given the question of construction about which the parties joined issue, this statutory scheme forming as it does part of the background to the making of the orders sought, I should also explain why, despite due respect being given to his Honour's reasoning, I also have reservations about Rothman J's conclusions, the provisions of the legislative scheme having to be approached, as they must, in the context of the statutory objects. In the case of the Assisted Reproductive Technology Act they are expressly concerned with preventing the commercialisation of human reproduction, which his Honour's approach, I consider it must be accepted, may risk.
Given that object and the focus of the definitions on the individuals from whom a gamete is obtained or received, in my view the proper construction of these provisions does not permit the conclusion that a person such as Ms Hosseini, whose body did not produce the gamete here in issue and from whose body it was not removed, is the gamete provider.
Section 23 does not contemplate that one person can be the provider of all the gametes used in IVF treatment, commencing as it does with "[a]n ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased".
It follows, logically it seems to me, in this statutory context giving the word "obtain" its ordinary meaning as extended by s 4, that it is not from a person such as Ms Hosseini that a sample of the kind here in issue can later be obtained, it having been originally obtained as it was by removal from Mr Baratikeshe's body after his death. That thereafter she became entitled to its ownership or possession, concepts with which the statutory definitions are not concerned, does not lead to the conclusion that Mr Baratikeshe's gamete could thereafter be obtained from Ms Hosseini.
That conclusion is supported by other provisions in which the defined terms are used. Section 17B of the Assisted Reproductive Technology Act pertinently prohibits an ART provider using a gamete in the circumstances specified in subs (1), including to provide ART treatment to a woman, without taking required steps to confirm the gamete provider's consent. An ART provider need not, however, comply with the section if "the ART provider knows or believes on reasonable grounds that the gamete provider is deceased": s 17B(4)(a).
That exclusion does not envisage that a person such as Ms Hosseini, who has authorised removal of a sample after death from her husband's body and thereby obtains ownership or possession of his gamete, thereafter is the gamete provider whose consent must be given when she seeks to use both it and her own ovum, to obtain ART treatment. After all, it is the death of the gamete provider which relieves the ART provider of the obligation to obtain confirmation of his or her consent.
This reflects that the legislative scheme is concerned with adherence to wishes which an individual such as Mr Baratikeshe may have provided before death, in writing, about the uses to which he or she consents to their gametes being put. It does not envisage that when such wishes have not been communicated, that any other person or persons who later become entitled to possession or ownership of the gametes, may then put them to uses to which they may consent.
Were it otherwise, unintended results would appear to follow, including that even if the deceased person had refused to consent to such a use before death, his or her wishes would not prevail, or even arise to be considered. That is because he or she would not be the gamete provider whose consent is required, when the gamete is later sought to be used.
I do not consider that it can be accepted that this was intended by this statutory scheme.
That it is the person whose body produced the gamete who is the gamete provider is also consistent with the "guiding principle" referred to in the Second Reading Speech in the Legislative Council, "to recognise the rights of individuals to have control over the use of their genetic material": Second Reading Speech, Assisted Reproductive Technology Bill (Hansard, Legislative Assembly, 7 November 2007, p 3643).
It is also consistent with s 16(b) requiring that there be consistency with "each gamete provider's consent", if gametes from more than one gamete provider are involved. That provision is also inconsistent with one individual being the gamete provider of both the sperm and ovum used in the provision of an ART service. So, too, are other provisions, including those which deal with collection of information from gamete providers: s 30; the provisions made in s 4B in relation to "donated gametes"; and the maintenance of a central register of accessible information about donors: s 415. Their purpose would appear not to be achieved if the construction for which Ms Hosseini contended were accepted.
It follows that while there is in this case no issue that Ms Hosseini was entitled not only to authorise the removal of the sample from Mr Baratikeshe's body as she did, but thereafter to its ownership and possession, thereby she did not become the gamete provider of that sample.

Is Ms Hosseini's consent nevertheless enough?

There is no suggestion that Mr Baratikeshe conveyed any relevant wishes before his death, understandably given the circumstances.
In my view Ms Hosseini's case that in the circumstances her written consent is sufficient to satisfy an ART provider that the relevant consent has been given, may not be accepted in relation to the gametes obtained from Mr Baratikeshe's body.
An ART provider is defined in s 4 to mean "a person who provides ART services and includes a registered ART provider, but does not include a person who provides ART services on behalf of a registered ART provider either under contract or in the course of the person's employment by the registered ART provider."
"ART service" is defined in s 4 to mean "any one or more of the following services, treatments or procedures that is provided for fee or reward or provided in the course of a business (whether or not for profit): (a) an ART treatment, (b) the storage of gametes and embryos for use in ART treatment, (c) the obtaining of a gamete from a gamete provider for use in ART treatment or for research in connection with ART treatment.
It follows that the Act also envisages storage of a gamete or embryo other than for use in ART treatment. Such storage is not an ART service.
"ART treatment" is defined in s 4 to mean "assisted reproductive technology treatment, being any medical treatment or procedure that procures or attempts to procure pregnancy in a woman by means other than sexual intercourse, and includes artificial insemination, in-vitro fertilisation, gamete intrafallopian transfer and any related treatment or procedure that is prescribed by the regulations."
Section 23 provides in its entirety: 23 Use of gametes or embryos after death of gamete provider An ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased, unless: (a) the gamete provider has consented to the use of the gamete after his or her death, and (b) the woman receiving the ART treatment has been notified of the death or suspected death of the gamete provider and the date of death (if known), and (c) the woman receiving the ART treatment has given written consent to the provision of the ART treatment using the gamete despite the death or suspected death of the gamete provider. Maximum penalty: 400 penalty units in the case of a corporation or 200 penalty units in any other case.
Given the proper construction of the definitions of "gamete" and "gamete provider", I am thus not persuaded that Ms Hosseini's consent can satisfy the requirements of s 23 in relation to use of the gamete obtained from Mr Baratikeshe, should she seek ART treatment in this State from an ART provider.
But on the evidence she has not sought such treatment. Ms Hosseini now seeks possession of the sample so that it can be transported to the ACT. On the evidence it appears likely that she will seek ART treatment there, but she was not cross-examined about this.
The Attorney did not suggest that this was a proper basis for refusing to make the orders sought. On Genea's case it will not be involved in transporting the sample if the orders are made.

Is Ms Hosseini entitled to an order for possession?

The Attorney made no submissions on this aspect of Ms Hosseini's application, accepting that the Court would apply the law discussed in the authorities to which reference was made.
In Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45, a case concerning the body of a still born baby which had been preserved in spirits in a bottle by the doctor who attended after the birth, Griffith CJ observed that "there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial": at 413, 414. Further 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, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances."
In that case it was concluded by majority that the baby's body had not come unlawfully into the possession of the doctor, who had acquired a right to its possession.
In Chapman Fagan J followed the views reached by RA Hulme J in Jocelyn Edwards; Re the estate of the late Mark Edwards (2011) NSWLR 198; [2011] NSWSC 478 ("Edwards") at [82], applying the reasoning in Doodeward, to conclude "that the steps taken to preserve and store the sperm after removal from the body were sufficient to have given it the character of property": at [76]. That led Fagan J to the conclusion that the sperm there in question had been lawfully removed and that prima facie, the plaintiff was thus entitled to the declaration sought as to possession of that sperm: at [77].
This is a similar case. Here the evidence establishes that the sample was lawfully removed from Mr Baratikeshe's body and that Ms Hosseini is now entitled to the possession which she seeks from Genea. She was not only Mr Baratikeshe's senior next of kin, but his executor and beneficiary and on her unchallenged evidence there is no-one else who has any interest in the sample.
Fagan J also concluded that giving possession of the sample to the plaintiff in that case would not constitute a "supply" contrary to s 21 of the Assisted Reproductive Technology Act, because it involved a transfer of possession from a bailee to the rightful owner, which was properly characterised as a release, relinquishment or surrender. Further, that if the plaintiff caused the sample to be collected by her transport agent for removal interstate, that would not constitute an "export" in contravention of s 22 of the Act: at [77]. It was not an "export", merely because the immediate recipient was an agent of the owner who will cause the item to be moved out of the jurisdiction: at [80]. Such transport would also not involve an ART service: at [84].
In arriving at these conclusions his Honour had regard to the ordinary meaning of the statutory words, considered in light of the objects of the Act, also concluding that what was proposed did not involve "the commercialisation of human reproduction".
On the evidence similar conclusions must be reached in this case. There is no evidence of Ms Hosseini having such a purpose. If she did, that would, of course, provide a proper basis for refusing to exercise the Court's discretion.
In Noone Beech-Jones J adopted the reasoning in Chapman and Edwards, with the result the conclusion that "neither Ms Noone nor Genea will be in breach of the ART Act if they arrange the safe transport of the tissue sample to the ACT. The fate of the tissue sample in the ACT is a matter for the laws of that polity.": at [51].
This is a similar case and I, too, adopt their Honours' reasoning.
In all the circumstances I have discussed, I am satisfied that orders should be made. No-one disputes Ms Hosseini's right to possession of the sample obtained from her deceased husband, nor seemingly could they, given her status as his statutory next of kin, executor and beneficiary. Genea does not claim any rights to the sample; it does not dispute Ms Hosseini's ownership or right to possession; and it does not object to the orders sought being made, bringing its storage of the sample lawfully removed from Baratikeshe's body to an end.
The Attorney also does not oppose the orders sought and nobody else appears to have any right to be heard.
In the result I am satisfied that justice requires that those orders be made.

Orders

For the reasons given I order that: 1. The plaintiff is entitled to possession of the reproductive tissue sample recovered from the body of her late husband, Ahmad Baratikeshe on or about 1 June 2019. 2. Upon request by the plaintiff, Genea Limited is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory. 3. Upon receipt of the sample from Genea Limited, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory.

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