Ms Edwards' entitlement to possession
41Senior counsel for Ms Edwards asserted that she has, incidental to her duty as administrator of her late husband's estate in relation to the disposal of his body, a right to possession of any part thereof and no other party has a superior right.
42Counsel for the Attorney General raised the alternative proposition that there is a right of property. He disputed the basis upon which Mr Simpson relied. In Mr Kirk's submission, the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.
43There are a number of authorities relevant to these propositions. Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 is a starting point. It concerned the body of a "two headed baby" which had been still-born in 1868. The attending doctor, Dr Donahoe, took the body away and preserved it in spirits in a bottle and kept it in his surgery as a curiosity. When Dr Donahoe died in 1870 the preserved body was sold as part of his personal effects. It then came into the possession of the appellant who exhibited it for gain. The defendant, a police inspector, seized the bottle and its contents. The plaintiff brought an action in detinue. A majority of the High Court (Griffiths CJ and Barton J) held that he was entitled to an order for recovery of the body.
44Higgins J, in his dissenting judgment, referred to many authorities, some of great antiquity, for the proposition that there is no property in a corpse. He concluded (at 421-422):
From first to last, I can find no instance of any Court asserting any property in a corpse except in favour of persons who wanted it for purposes of burial, and who by virtue of their close relationship with the deceased might be regarded as under a duty to give the corpse decent interment.
45Griffiths CJ and Barton J acknowledged such authorities but the Chief Justice, Barton J agreeing, did not find that they assisted with the case at hand. His Honour (at 412) was of the view that the court was "free to regard it as a case of first instance arising in the 20 th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense".
46Griffiths CJ then held (at 413-4) that no law forbade in all circumstances the mere possession of a human body for purposes other than immediate burial. He concluded (at 414):
If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, 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, 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. (Emphasis added)
47The plaintiff succeeded upon the finding that the body had originally come into the possession of Dr Donahoe "not unlawfully"; that he had bestowed some work or skill upon it, and that it had acquired an actual pecuniary value.
48Three decisions of single judges of the Supreme Court of Queensland were referred to in the course of submissions. They each concerned an urgent application for the taking of sperm from deceased men but they also considered the property issue.
49The application for the taking of sperm was refused in Re Gray [2000] QSC 390; [2001] 2 Qd R 35. Chesterman J referred to authorities for the proposition that there is no property in a deceased body of a human being. His conclusion is encapsulated in the following:
[20] The principle clearly established, that the deceased's personal representative or, where there is none, the parents or spouse, have a right to possession of the body only for the purposes of ensuring prompt and decent disposal has, I think, the corollary that there is a duty not to interfere with the body or, to use the language found in Pierce, to violate it. These principles are inimical to the proposition that the next of kin or legal personal representative may remove part of the body
50In Baker v State of Queensland [2003] QSC 2, Muir J found the circumstances of the application were not relevantly distinguishable from those in Re Gray and the application was dismissed by the adoption of the reasoning of Chesterman J.
51Atkinson J granted the application in Re Denman [2004] QSC 70; [2004] 2 Qd R 595. Her Honour referred to Re Gray and Baker v State of Queensland but found (at [35]) that there were "valid public policy arguments" that pointed in the opposite direction to those which she thought had led Chesterman and Muir JJ to refuse the applications in those cases. The authorities concerned with the property status of a deceased body that Chesterman J referred to were not directly addressed in her Honour's judgment.
52Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331 was decided before any of the Queensland cases just referred to but was not cited in any of them. The issue for Sanderson M in this case was whether certain body samples taken from the deceased and stored prior to death were "property". The plaintiff sought orders having the effect that the samples be submitted for DNA testing to assist in the determination of whether she was the deceased's natural daughter and, thus, entitled to claim on his estate. The application was put on two bases, each of which involved a consideration of whether the tissue samples were property.
53Sanderson M referred to authorities such as Williams v Williams [1882] 20 Ch D 659 in which it was held by Kay J at 662-665 that, "there can be no property in the dead body of a human being ... after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried". His review of authorities also included Doodeward v Spence , above, but he found them all to be distinguishable upon the basis that they were concerned with bodies and he was concerned with tissue from a body. He concluded:
[23] Having given careful consideration to all of the cases I have mentioned and to the many learned articles on the subject, I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this case it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff's claim. There will be a considerable saving in time and cost, so on the particular facts of this case there is a compelling reason for holding the tissue samples to be property.
[24] In the wider sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.
54A similar application came before this Court in Pecar v National Australia Trustees Ltd and Anor , unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996. The plaintiff sought an order determining his alleged entitlement as son of the deceased to share in the distribution of his estate. He made an application for orders that would have the effect of permitting a comparison of his DNA with that contained in human tissue samples from the deceased that had been taken during an autopsy and were being held at a pathology laboratory. The application was made under Pt 25 r 8 of the Supreme Court Rules 1970 which related to the inspection of "property". Bryson J identified the question before him as whether tissue samples or other parts of a dead human body are property. He referred to the exception identified by Griffiths CJ in Doodeward v Spence and held:
This view would justify a right to retain possession of autopsy specimens, especially in this case where the human tissue is fixed in and an accretion to a paraffin block which itself is susceptible of ownership. In my opinion the pathology specimen is property within the general meaning of that term which connotes that property has an owner.
In my opinion however the word "property" in r8 as extended by subr(4) is not used so as to require that there be any right of ownership. The rule does not deal with rights of ownership but with adduction of evidence, and it was not significant for the purposes of the rule whether or not there was a right of ownership. In my opinion the autopsy samples are property within the meaning of r8.
55In S v Minister for Health (WA) [2008] WASC 262, Simmonds J dealt with an urgent application for orders permitting the recovery of sperm from a deceased husband who had been about to embark upon assisted reproductive treatment with his wife. His Honour found (at [9]) jurisdiction to make the orders in the same rule that was applied by Sanderson M in Roche v Douglas and agreed with the master that "property" within that rule was capable of including tissue taken from the body of a person who subsequently died. He saw (at [10]) no distinction in taking samples of tissue from a body before death and the taking of a sample after death.
56There are two cases in the United Kingdom where tissue samples have been regarded as property in the context of criminal prosecutions for larceny but they are of no real authority. No cases were cited in either judgment.
57In R v Welsh [1974] RTR 478 a man was taken to a police station under suspicion of being in charge of a motor vehicle whilst under the influence of alcohol. He provided a urine sample but then when the constable left the room he emptied it into a sink. He was convicted of attempting to defeat the course of justice and theft of the urine sample. He appealed, but only in respect of the severity of the sentences imposed. The conviction for theft was not questioned.
58In R v Rothery (1976) 63 Cr App R 231, a man in similar circumstances to those in Welsh was required to provide a specimen of blood. The specimen was provided but then stolen when the constable's back was turned. The man was charged with theft and with failing to provide a specimen for laboratory testing. He pleaded guilty to both offences yet appealed against his conviction, but only in respect of the latter offence. The appeal was upheld. Again, the conviction for theft was not questioned.
59One of the authorities referred to by Sanderson M was Dobson v North Tyneside Health Authority [1997] 1 WLR 596; [1996] 4 All ER 474. The brain of a deceased woman had been removed and preserved in paraffin in the course of a post mortem examination on behalf of the coroner. The body was returned to the deceased's family for burial but the brain was retained at a hospital. No further examination of it was required by the coroner and so it was disposed of. Three years after the death, the deceased's mother took out letters of administration to the estate and commenced proceedings in her own right and as next friend for the deceased's son. The proceedings included an action against the hospital for destroying evidence which could have been of use in a case against another hospital for having failed to detect the tumours from which the deceased had died. The proceedings were for conversion, and it was necessary for the plaintiff to establish, in the absence of actual possession, an immediate right to possession.
60Gibson LJ referred (at 600-601) to authorities for the proposition that there is no property in a corpse but noted that it is subject to qualification. Reference was also made to Doodeward v Spence . He concluded, however, that there was no right of the next of kin to possession of the deceased's brain. It had been taken and preserved for purposes associated with the coronial investigation of the death. Once those purposes were served there was no need for its further retention. This factual situation was not "on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or with preserving a human freak such as a double-headed foetus that had some value for exhibition purposes". For these reasons, Gibson LJ, with whom the other members of the court agreed, held (at 601-602) that the preservation of the brain in this case did not render it an item the possession of which the plaintiffs ever became entitled for any purpose. Because the judgment engaged in identifying this distinction, it would seem that the correctness of Doodeward v Spence was not doubted.
61AB & Ors v Leeds Teaching Hospital NHS Trust and Anor [2004] EWHC 644 (QB) was concerned with claims for psychiatric injury brought by parents of children who had died. Body parts had been taken during post mortems and not returned. The plaintiffs relied upon their duty to bury as conferring a right to possess the body, including all its parts, for the purpose of burial. The defendants claimed that there was at least a right of the hospitals and pathologists to possess organs on which work and skill had been carried out.
62Gage J referred to Doodeward v Spence, Dobson v North Tyneside Health Authority and R v Kelly [1999] QB 621; [1998] 3 All ER 741 and held:
[148] In my judgment the principle that part of a body may acquire the character of property which can be the subject of rights of possession and ownership is now part of our law. In particular, in my opinion, Kelly's case establishes the exception to the rule that there is no property in a corpse where part of the body has been the subject of the application of skill such as dissection or preservation techniques. The evidence in the lead cases shows that to dissect and fix an organ from a child's body requires work and a great deal of skill, the more so in the case of a very small baby such as Rosina Harris. The subsequent production of blocks and slides is also a skilful operation requiring work and expertise of trained scientists.
63The Court of Appeal of England and Wales has recently taken the view that semen samples can be property: Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1. Six men were diagnosed with cancer and were being treated at a hospital for which the defendant was responsible. They were asked if they wished to provide semen samples for storage in the event that the chemotherapy they were about to undergo was damaging to their fertility. Such samples were provided, preserved and stored. However, the liquid nitrogen in the tanks in which the samples were stored fell below the required level and the semen thawed. Proceedings based upon the tort of negligence were brought against the Trust by five of the men and the administrator of the estate of the sixth man. It was claimed that each had suffered either psychiatric injury or mental distress. The defendant asserted that even if a breach of duty (which it admitted) had caused the harm claimed, the men were not entitled to recover damages because the loss of the sperm constituted neither personal injury nor damage to property. A judge determined preliminary issues adversely to the men, including finding in favour of the Trust on the two matters I have just mentioned.
64The Court of Appeal upheld the finding of the trial judge as to there being no personal injury, but a different view was taken on the property issue. It was held, unanimously, that the sperm, in the circumstances of the case, could be property for the purposes of the law of negligence.
65Yearworth involved a distinction with the present case in that the property right asserted was that of living men, or, in one case the administrator of the estate of a man, who had each freely donated sperm for a specific purpose (potential use to conceive a child by assisted reproductive treatment if they were rendered infertile).
66The Court accepted (at [31] - [32]) that long-standing authorities established the propositions that there was no property in either a living human body or a human corpse. Reference was made (at [33]) to Doodeward v Spence , which, it was noted (at [34] - [36]), had been acknowledged in Dobson v North Tyneside Health Authority and in R v Kelly . In the latter it was held that human body parts which had been preserved and were in the possession of the Royal College of Surgeons and used in training surgeons could be property and thus the subject of theft. Rose LJ stated (at 630-631):
"We accept that, however questionable the historical origins of the principle, it has now been the common law for 150 years at least that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights. ...
... [But] parts of a corpse are capable of being property within s 4 of the [Theft Act 1968], if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes ...
Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purposes of s 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence."
67The Court in Yearworth then noted (at [39] - [40]) two Californian authorities. In Moore v Regents of the University of California (1990) 793 P 2d 479 a man sued his surgeon who had removed his spleen and other body parts with consent but had then used them profitably in research without having disclosed his intention to do so. One of the causes of action was for conversion of the body parts. The Californian Supreme Court rejected this aspect of the claim on the basis that the man did not remain the owner following their removal. However, in Hecht v Superior Court of Los Angeles County (1993) 20 Cal Rptr 2d 275, a man donated sperm and caused it to be stored, bequeathing it in his will to his partner with the intention that she would use it conceive a child. The man committed suicide. A preliminary point determined in a challenge by the deceased's children to the will was whether the sperm was something that was capable of disposition by will. The Californian Court of Appeals held that it was. The Court in Yearworth regarded ownership of stored sperm for the purpose of directing its use following death as being a step beyond that which the six men were inviting it to take in the case at hand.
68Amongst a number of conclusions reached in Yearworth (at [45]) were the following:
(a) In this jurisdiction developments in medical science require a re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise.
...
(c) For us the easiest course would be to uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in Doodeward's case (1908) 6 CLR 406. We would have no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen at minus 196 C was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. We would regard R v Kelly [1998] 3 All ER 741, [1999] QB 621 as entirely consistent with such an analysis and Dobson's case [1996] 4 All ER 474, [1997] 1 WLR 596 as a claim which failed for a different reason, namely that the pathologist never undertook to the claimants, and was not otherwise obliged, to continue to preserve the brain.
(d) However, as foreshadowed b Rose LJ in R v Kelly , we are not content to see the common law in this area founded upon the principle in Doodeward's case, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes?
(e) So we prefer to rest our conclusions on a broader basis.
(f) In our judgment, for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated. ...
69The most recent case to which Mr Kirk referred in his submissions was Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118. Mr Bazley and his wife had one child and intended to have more. When he was diagnosed with cancer, he was told that the treatment would temporarily, and perhaps permanently, adversely affect his fertility. He provided a semen sample which the respondent stored. Mr Bazley subsequently died. He left a will nominating his wife and his accountant as executors and trustees and his wife as the principal beneficiary. However, the will made no mention of the semen sample.
70Ms Bazley contacted the respondent and asked that it continue to store the sample. It responded that it was bound by guidelines which prohibited the storage and use of gametes (in this case, sperm) in the absence of a "clearly expressed and witnessed directive" from the gamete provider. Ms Bazley applied to the Queensland Supreme Court for orders that the respondent continue to store the samples and be prohibited from destroying them until further order.
71White J characterised (at [16]) the question for determination as being "whether sperm extracted and stored can be described as 'property' and thus form part of Mr Bazley's estate". Her Honour referred to Yearworth and the authorities considered therein. She noted that the Court of Appeal there had held, in addition to what I have referred to earlier, that there had been a bailment of the sperm by the men to the defendant. Reference was also made to Roche v Douglas , above, before her Honour concluded:
[33] The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. The arrangement could also come to an end when the respondent died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner which it was held, which preserved its essential characteristics as frozen semen capable of being used. ...