Plaintiff v First Defendant

"These orders were made upon the Court being informed by the Applicant's legal representatives that 'X' had died at the Austin Hospital on 17 August 2004, that arrangements had been made for a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of 'X' and that, in accordance with section 26(1) of the Human Tissue Act 1982, a designated officer for the Austin Hospital had authorized the removal of spermatozoa and associated tissue from the body of 'X'."

"1. Permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue form the body of 'X', which is presently at the Austin Hospital in Melbourne, and that such spermatozoa and associated tissue be stored in accordance with the provisions of the Infertility Treatment Act 1995 (Vic).

2. Any spermatozoa and associated tissue removed and stored pursuant to paragraph 1 of these orders not be used for any purpose without an order of this Court."

Jurisdiction

14 The first issue raised by the application was whether the Court had jurisdiction to make orders in the nature of those sought. The plaintiff submitted that the inherent jurisdiction of the Supreme Court enabled it to make the orders sought.

15 The jurisdiction of the Supreme Court is conferred by s.85(1) of the Constitution Act 1975 which provides that, subject to that Act, the Supreme Court:

"shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior court of Victoria with unlimited jurisdiction."

16 In the absence of that provision, the Supreme Court would, as a superior court be a court of general jurisdiction which, according to Dawson J in DMW v CGW[1], "is not to say that there cannot be jurisdictional limits but rather that it will be presumed to have acted within jurisdiction." Further, although the powers of the Court are conferred by statute, they are "identified by reference to the unlimited powers of the courts at Westminster": Grassby v The Queen[2]. In that case, Dawson J also said that:

"it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power."[3]

17 Some limitation upon the scope of the inherent and statutory jurisdiction of the superior courts of the States was suggested by the High Court in Reid v Howard[4]. That case was concerned with the question whether the inherent power of the Supreme Court of New South Wales or s.23 of the Supreme Court Act 1970 (NSW) authorised a civil court to compel self-incriminatory disclosures and to make orders preventing the use of the information obtained in a criminal court. Section 23 provided that:

"The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."

In the joint judgment of Toohey, Gaudron, McHugh and Gummow JJ it was stated that:

"Although it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories, the power is not at large. Nor is the jurisdiction conferred by s.23 of the Supreme Court Act. Neither the inherent power nor the completely general terms of s.23 can authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute."[5]

Whether the application entailed the Court making orders in the nature of those described in that passage is considered below.

18 The question of jurisdiction to make orders similar to those sought in this proceeding has been considered in a number of earlier cases both in this Court and other State Supreme Courts.

19 In AB v Attorney-General of Victoria[6] Gillard J noted "the uncertainty of the jurisdiction and its exercise" and later stated that "the question of the Court's jurisdiction and the exercise of it are matters which will have to be explored, as will the question of the use of the semen hereafter, if at all." In that case, Ms AB and her husband were residents of the Australian Capital Territory. The husband, who was in Victoria for the purposes of his work, was killed in a car accident and Ms AB sought to have her husband's sperm removed. In giving brief reasons following an extremely urgent application Gillard J mentioned some of the provisions of the Human Tissue Act 1982 ("the HTA") and of the ITA which would have to be considered in the future.[7] Gillard J granted permission to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of the deceased and ordered that such spermatozoa and tissue be stored in accordance with the ITA. The orders sought in the current application were modelled on those made by Gillard J.

20 In Fields v Attorney-General of Victoria[8], an application was brought by the parents of the deceased for an order from the Court for the removal of spermatozoa and associated tissue from their son who died as a result of a car accident. The deceased was aged 23 years. The deceased's wife was also involved in the accident and, at the time of the application, was in intensive care at the Alfred Hospital and not in a position to make the application herself. Prior to the accident the couple had been attending a fertility treatment program at the Royal Women's Hospital. Again, the matter was urgent. Coldrey J referred to an order that he had made in a previous case and to the order made by Gillard J in AB v Attorney-General of Victoria and said that he therefore assumed "that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out."[9] Coldrey J ordered that the spermatozoa be removed and stored. Although his Honour alluded to possible legal impediments to the ultimate fertilisation of the deceased's wife with any sperm or tissue removed, he described that as "an issue for another day."[10]

21 In the first of the interstate cases, MAW v Western Sydney Area Health Service[11], O'Keefe J held that the parens patriae jurisdiction of the Supreme Court of New South Wales, which was protective of living persons, did not extend to the authorisation of a non-therapeutic procedure such as the removal of semen from a comatose and dying patient. His Honour also considered whether either the Guardianship Act 1987 (NSW) or the Human Tissue Act 1983 conferred jurisdiction but held that they did not. In that case, the husband and wife had "decided not to have children until they got on their feet financially."[12] At the time of the husband being struck by the bull bar on a heavy vehicle, with resultant severe brain damage, the couple had "no plans" to have a child.[13]

22 Mr Quinn said that the plaintiff in this application did not rely on the parens patriae jurisdiction. He also submitted that O'Keefe J did not consider whether some area of the Court's inherent power, other than the parens patriae jurisdiction, provided a source of power to make the orders sought. Mr Quinn submitted that the Court's inherent power was much wider than that assumed by his Honour.

23 In MAW O'Keefe J also held that, even if he had a discretion to make the orders sought, it should not be exercised in favour of the plaintiff. One of the factors considered by his Honour in coming to that conclusion was the likelihood that the semen of the patient, if extracted, would be used for the impregnation of his wife. In respect of that factor, his Honour said:

"To permit an invasive procedure to be undertaken so as to preserve a possibility of use of the semen for the purposes of impregnation, does not commend itself to me as a sound basis for exercising a discretion in favour of giving the necessary consent.

Furthermore, it is clear that the emotional state of the plaintiff is such that she should not make decisions which will fundamentally affect her future whilst she is under the stress which the present circumstances impose upon her. She herself recognises this and is supported by professional opinion to the same effect. Moreover, whilst recognising that it is difficult to predict the future or future actions of an individual, I cannot help but think that when the emotional crisis of the plaintiff subsides, when she returns to work and ordinary circumstances of living and when she considers the prospect of having to involve herself in bearing and caring for a child which, as she herself said 'is incredibly time consuming and demanding', she is quite likely to change her mind about having a child. Even if this view be not correct, the prospect that it may be correct would itself be relevant to this head of consideration in relation to the exercise of any discretion and would operate against its exercise in a way which would permit the possibility of conception being brought about.

The plaintiff herself recognised that the views presently held by her and her wishes may change. The fact that she couches her present application in terms of leaving open an option or possibility, to my mind highlights the real prospect that with the passage of time and the occurrence of other events, her view will change as her perspective of the events in which she is presently involved changes.

I realise that in coming to these conclusions it may be thought that the court is substituting its own view for the view of the plaintiff. However, in the exercise of the parens patriae jurisdiction the substitution of the court's view for that of the parents of a child or the guardian of an incapable person is not uncommon. The court in its exercise of such jurisdiction acts without the emotional, financial and other pressures which may be imposed on the parents or guardian of the person in respect of whom the jurisdiction is exercised."[14]

24 In Re Gray[15], the applicant's husband died unexpectedly in his sleep. They had a one year old child and had discussed having another child. It was their intention to attempt to do so in the near future. Chesterman J held that neither the general jurisdiction conferred on the Supreme Court of Queensland by the Supreme Court of Queensland Act 1991 (Qld) nor the parens patriae jurisdiction supported the orders sought. His Honour said that:

"The applicant submitted that the court had power to make the order by reason of s. 8 of the Supreme Court of Queensland Act 1991 and/or its inherent jurisdiction of the type described as parens patriae. Section 8 provides that the court has all jurisdiction that is necessary for the administration of justice in Queensland and, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise. I apprehend that the section does not confer power on the judges of the court to do whatever accords with their own, perhaps idiosyncratic, views of justice. The jurisdiction is to afford justice to litigants according to law, i.e. established legal principle. The difficulty in the present case is identifying any principle which would justify making the order. The application is itself an implicit acceptance that neither the widow nor next of kin has a right to interfere with the body. Nothing I have found suggests that the court can create or regulate such a power."[16]

His Honour also held that the parens patriae jurisdiction was not exercisable with respect to a dead body.[17]

25 Further, although Part 3 of the Transplantation and Anatomy Act 1979 regulated the removal of tissue (which was defined in such a way as to include semen) from dead bodies, his Honour held that the Act did not apply because the removal had to be for transplantation into the body of a living person or for some "therapeutic ... or ... other medical or scientific purposes" and that the applicant's purpose was not one of those.[18]

26 Chesterman J also placed particular reliance upon the well-established common law principle that there was no property in a corpse[19] and no right to interfere with, or to authorise interference with, a corpse. His Honour acknowledged that in Doodeward v Spence[20] the High Court had held that in some circumstances there may be a right of property to a body. According to Griffith CJ:

"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 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 ..."[21]

27 However, Chesterman J seemed to prefer the dissenting judgment of Higgins J, who would not have recognised the exception.[22] His Honour further stated that the English Court of Appeal in Dobson v North Tyneside Health Authority[23] had recently reaffirmed the principle stated by Higgins J. This led his Honour to conclude that:

"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[24], 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."[25]

28 Chesterman J also held that, if there were some general overriding power, he would have declined to exercise his discretion to permit the applicant to have reproduction tissue taken from her husband's body, for three reasons:

"(a) The deceased did not in his lifetime indicate his consent to such a procedure. He did not, naturally enough, ever turn his mind to such an eventuality. While it may be accepted that he desired another child it was a desire he wished to consummate in his lifetime. There is no reason to believe he wished his wife to be impregnated posthumously.

(b) The court could have no confidence that the applicant's desire is a result of careful or rational deliberation. Given the need for urgent removal and the circumstances of her husband's death the applicant must have been suffering greatly from grief and shock. The decision made under the effect of such emotions is one she may well come to regret. It may not reflect her true desire or her assessment of what is best for herself and her child.

(c) The interests of any child born as a result of the procedure must be of particular importance in the exercise of the discretion. I cannot see how it can be said that the interests of such a child will be advanced by inevitable fatherlessness. The very nature of the conception may cause the child embarrassment or more serious emotional problems as it grows up. More significant, because the court can never know in what circumstances the child may be born and brought up, it is impossible to know what is in its best interests."[26]

29 In Baker v Queensland[27] Muir J followed Gray and held that the Court had no jurisdiction to make the orders sought. His Honour considered that the facts in that case were not distinguishable from those in Gray.

30 In Re Denman[28] Atkinson J of the Supreme Court of Queensland found the Court had inherent jurisdiction to allow the application and respectfully declined to follow Gray and Baker. In Denman the applicant's husband had died accidentally and therefore unexpectedly. The couple had no children but had spoken of their desire to have children, and in furtherance of this desire, they had recently married. Her Honour considered that the application potentially involved the determination of two questions. She said:

"The first question in this case is whether or not the spermatozoa should be allowed to be harvested in order to determine its future use. The second question is whether or not the harvested sperm can be used for posthumous insemination. It is only necessary at this stage to determine the first question. At this stage, the question is very similar to that to be decided on an interlocutory injunction; is there a serious question to be tried and, if so, what does the balance of convenience require should be done?

As there is no express statutory prohibition on the removal of sperm from a deceased person in Queensland, it appears to me there is a serious question to be tried as to whether or not sperm can or should be removed from a deceased person and used for the purpose of posthumous reproduction.

Both of the judges who decided the cases I have referred to in Queensland referred to what they regarded as strong public policy arguments against such a course. Those arguments are valid, but there are also valid public policy arguments in the other direction.

...

As to the balance of convenience, in my view the balance of convenience clearly requires that the sperm be harvested so that its use can be determined. If it is not harvested then there is no relief that can be sought by the applicant.

Whereas if it is harvested, then it can be determined by this Court or the Court of Appeal whether or not that sperm, once stored, ought be used.

In my view, giving respect to the decisions in Gray and Baker, the Court has the inherent jurisdiction to allow behaviour which is not unlawful."[29]

31 The question of jurisdiction is, of course, subject to any statutory limitations. I turn then to examine the provisions of the two statutes which are relevant to this application. They are the HTA, which regulates the removal of human tissue from bodies of living and deceased humans, and the ITA, which regulates the use of certain types of human tissue for the specific purpose of infertility treatment.

The Human Tissue Act 1982

32 There is a clear prohibition on the removal of human tissue imposed by s.44 of the HTA, other than in accordance with that Act. Section 44 states as follows:

"Offences

(1) A person shall not remove tissue from the body of a person whether living or dead except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by that person."

33 Section 44 must, for present purposes, be read in conjunction with ss. 25 and 26 which allow a registered medical practitioner to remove tissue, under certain specified circumstances. These sections are found in Part IV of the HTA which deals with "Donations of Tissues after Death." Section 25 provides that:

"Effect of authority under section 26

An authority under section 26 is sufficient authority -

(a) for a registered medical practitioner other than -

(i) a registered medical practitioner who gave the authority; or

(ii) a registered medical practitioner who gave a certificate under section 26(7) relating to that authority -

to remove tissue from the body of a deceased person in

accordance with section 26; and ..."

(1) A designated officer for a hospital may, subject to and in accordance with this section, authorize 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) 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 -

(i) has, at any time, in writing; or

(ii) had, during his last illness, orally in the presence of two witnesses -

expressed the wish for, or consented to, the removal after his death of tissue from his body for such a purpose or use;

(d) subject to sub-section (3), where the senior available next of kin of the deceased person makes it known to the designated officer that he consents to the removal of tissue from the body of the deceased person for such a purpose or use; or

It was not suggested by any party that the remaining section in Part IV, s.27, which related to consent by a coroner, was relevant in this case.

34 The definition of "tissue" in s.3(1) of the HTA was that it "includes an organ, or part, of a human body or a substance extracted from, or from a part of, the human body." The plaintiff contrasted Part II of the HTA relating to "Donations of Tissue by Living Persons", which contained an interpretation section that "a reference to tissue should not be read as including a reference to foetal tissue, spermatozoa or ova" (s.5), with Part IV where there was no such provision. Accordingly, the plaintiff submitted that the general definition of tissue in s.3 applied to ss.25, 26 and 44.

35 It was common ground that authorisation under s.26(1) of the HTA was only possible if removal was for one of the purposes set out in paragraphs (a) or (b) and the preconditions set out in either paragraph (c) or paragraph (d) were satisfied.

36 The plaintiff submitted that removal "for the purpose of the transplantation of the tissue", under s.26(1)(a), applied to an IVF procedure that utilised sperm for conception, because it was simply the removal of the semen and associated substances from one person, for use in another. Reference was also made to s.3(2) of the ITA which provided that:

"A reference in this Act to the transplantation of tissue shall be read as including a reference to the transplantation of any part of the tissue and the transplantation of a substance obtained from the tissue."

The definition of "transplantation" contained in The Shorter Oxford English Dictionary includes "the operation of transferring an organ or a portion of tissue from one part of the body, or from one person or animal, to another."[30] The plaintiff submitted that the word "transplantation" was apt to describe the removal of sperm from one person for insertion into another. It was not to the point that it would not be inserted into the same part of the human body from which it came or that it would not be inserted to grow in the same manner in which it grew within the person from whom it was removed.

37 I do not agree. It seems to me that "transplantation" is concerned with the use of one person's organs, such as heart, liver or kidneys, to replace the same part of another person's body, which is no longer carrying out its designated purpose or task. Placing spermatozoa into a woman or using the sperm to fertilise an egg outside the body and then placing the fertilised egg into a woman does not, in my opinion, fall within the common meaning of "transplantation." As Ms Hampel SC, who appeared with Mr Moloney for the second defendant, submitted, the concept of "transplantation" in s.26(1)(a) is limited to doing something to a person who is in need of a supplement or replacement. It does not cover the circumstances of the creation of a new life. I therefore reject the submission that the proposed procedure comes within s.26(1)(a) of the HTA.

38 Alternatively, the plaintiff submitted that the facts of the application fell within the "medical purposes" aspect of s.26(1)(b), in that the removal of spermatozoa was for the medical purpose of assisting another person to become pregnant by "a fertilisation procedure" within the meaning of the ITA. In that Act, the various definitions of "a fertilisation procedure" refer to it as a "medical procedure."[31]

39 The defendants queried whether the obtaining of the sperm could be said to be for a medical purpose when that purpose was not related to Mr X's needs or that purpose could not be achieved under the ITA. Although they are difficult questions, I am satisfied, for present purposes, that the obtaining of the sperm would be for "medical purposes." After all, the section proceeds on the basis that the person, from whom the tissue is to be removed, has died. Therefore, the requirement that the use of that tissue be for "medical purposes" cannot be related to his medical needs.

40 Having decided that the removal of the sperm could be said to be for "medical purposes", it is unnecessary to deal with the plaintiff's further submission, in respect of s.26(1)(b), that the removal could be "for use of the tissue for other therapeutic purposes."

41 The next issue was whether s.26(1)(c) of the HTA was applicable. That depended on deciding whether the fact that Mr X had registered as an organ donor meant that he had consented in writing to "the removal after his death of tissue from his body for such a purpose or use." In MAW, O'Keefe J held that the fact that the patient had, on his driver's licence, elected to become an organ donor was not relevant. His Honour said that the consent to organ donation did not "extend to semen" nor could it "be construed as any consent in respect of semen or its use whether posthumously or not."[32] The existence of a similar election by the deceased in Gray was also treated as irrelevant.[33]

42 I do not consider that Mr X's registration as an organ donor is sufficient consent within the meaning of s.26(1)(c). I agree with the view expressed by O'Keefe J in MAW that it is one thing for an organ donor to consent to the removal of his heart or liver, for example, in order to save a life or lives. It is a completely different proposition to suggest that such consent also incorporates the use of spermatozoa to create a new life. At best, the registration as an organ donor indicated that Mr X was prepared to have his body "interfered with" after his death by medical procedures.

43 The plaintiff then submitted that the facts of the application satisfied the requirements of s.26(1)(d) of the HTA, in that Ms Y consented to the removal. By virtue of the definitions of "senior available next of kin" and "spouse" in s.3(1) of the HTA, it was Ms Y's consent that was relevant. Sub-section 26(1)(d) is expressed to be subject to s.26(3), which provides that:

"(3) A designated officer for a hospital shall not give an authority under paragraph (d) of sub-section (1) and a registered medical practitioner or authorized person shall not remove tissue under paragraph (d) of sub-section (2) if he has reason to believe that the deceased person -

(a) had, during his lifetime, expressed in writing an objection to the removal of tissue from his body after his death; or

(b) had, at any time during his illness, expressed orally in the presence of two witnesses an objection to the removal of tissue from his body after his death."

There was no evidence of any such objection by Mr X. Therefore, in my opinion, the circumstances of this application satisfy s.26(1)(d) of the HTA. Accordingly, I conclude that authorising the proposed procedure would not involve anyone in a breach of s.44 of the HTA.

The Infertility Treatment Act 1995

44 The next question was whether the circumstances of this application met the requirements of the ITA. A number of submissions were made which raised real doubts about whether any sperm obtained from Mr X could ever be used in Victoria in compliance with the provisions of the ITA. However, because of the view I take of the nature of this application it is not necessary to consider these submissions in great detail or to determine whether they are correct. It is, nevertheless, appropriate to refer to them because they illustrate the uncertainty surrounding the meaning of certain provisions of the ITA.

45 According to s.1(a) of the ITA one of its main purposes is "to regulate the use of in-vitro and other fertilisation procedures and donor insemination procedures." The most important guiding principle, set out in s.5(1)(a) of the ITA, which is to be given effect in administering the Act, carrying out functions under the Act, and in the carrying out of activities regulated by the Act is that:

"the welfare and interests of any person born or to be born as a result of a treatment procedure are paramount."

46 A "fertilisation procedure" is defined by s.3(1) of the ITA to mean:

"(b) the medical procedure of transferring to the body of a woman an embryo formed outside the body of any woman

(c) the medical procedure of transferring -

(i) an oocyte, without also transferring sperm, to the body of a woman; or

(ii) sperm (other than by artificial insemination) to the body of a woman; or

(iii) an oocyte and sperm to the body of a woman."

47 Section 3(1) also contained definitions of some of the terms used in the definition of a "fertilisation procedure." Thus,

" 'artificial insemination' means a procedure of transferring sperm without also transferring an oocyte into the vagina, cervical canal or uterus of a woman."

" 'oocyte' means an ovum from a woman."

" 'sperm' means sperm from a man."

48 Section 6 of the ITA provides that a fertilisation procedure may only be carried out:

(a) by a doctor approved under the Act to carry out the particular type of procedure being carried out;

(b) on eligible persons in accordance with the counselling and consent provisions of the Act relating to eligible persons, donors and where applicable their legal or de facto spouses; and

49 Ms Hampel submitted that, in the circumstances of this application where it was proposed to remove the sperm after Mr X had died, Ms Y could neither show that she was an eligible person nor that Mr X had given the requisite consents and received the prescribed counselling.

50 Section 8(1) of the ITA provides that:

"A woman who undergoes a treatment procedure must -

(a) be married and living with her husband on a genuine domestic basis; or

(b) be living with a man in a de facto relationship."

Before a woman undergoes a treatment procedure "she and her husband must consent to the carrying out of" that procedure (s.8(2) of the ITA). That consent must be informed consent after the woman and her husband have received counselling from an approved counsellor (ss.9(1), 10(1) and 11(1) of the ITA). A doctor must be satisfied that "the woman is unlikely to become pregnant from an oocyte produced by her and sperm produced by her husband other than by a treatment procedure" or that if fertilisation occurred by natural means it could result in a genetic abnormality (s.8(3) of the ITA).

51 In McBain v The State of Victoria[34], Sundberg J held that the requirement in s.8(1) of the ITA that the woman, in order to be eligible, be married or living with a man in a de facto relationship was directly inconsistent with s.22 of the Sex Discrimination Act 1984 (Cth) which made it unlawful to refuse to provide services to a person on the ground of that person's marital status. Therefore, for the purposes of s.8(1), it was not relevant that Ms Y would be a widow at the time of the treatment procedure.

52 Nevertheless, I was informed that the Infertility Treatment Authority ("the Authority"), the body established under the ITA in part to administer, and monitor compliance with the licensing and approvals system under the Act and to grant exemptions under the Act[35], had advised authorised doctors and licensed places that it regarded the expression "unlikely to become pregnant" in s.8(3) as meaning "clinical", as opposed to "social", infertility. Ms Hampel submitted that there was no evidence that Ms Y would satisfy the clinical infertility requirement.

53 Further, it goes without saying that, by virtue of his death, Mr X was unable to give any of the consents required of donors or to have received counselling from an approved counsellor. However, it was argued on behalf of the plaintiff that as Ms Y would, ex hypothesi, be a widow the question of the consent of, and counselling for, "her husband" was irrelevant. She was the only one who would have to satisfy these requirements.

54 More difficult issues were raised by the consent requirements of s.12 of the ITA. The consent of the donor of the sperm, if he is not the husband of the woman on whom the treatment procedure is to be carried out, is required either before the sperm is used in a treatment procedure (s.12(1) of the ITA) or before the sperm was used to form an embryo (s.12(3) of the ITA). By virtue of his death, it was arguable that Mr X was not the husband of Ms Y at the relevant time and therefore no consent had been given. The outcome of this issue possibly depended on what was meant by "the husband" in s.12 in circumstances such as the present case.

55 Another difficulty confronting the plaintiff was s.43 of the ITA. At the time of the application that section provided as follows:

"Ban on procedures involving gametes of people known to be dead

A person must not -

(a) inseminate a woman with sperm from a man known to be dead; or

(b) transfer to a woman a gamete from a person known to be dead."

A "gamete" was defined in s.3(1) to mean "an oocyte or sperm."

56 However, as originally enacted, s.43 provided as follows:

"Ban on procedures involving gametes of people known to be dead

A person must not -

(a) inseminate a woman with sperm from a man known to be dead; or

(b) transfer to a woman a gamete from a person known to be dead; or

(c) transfer to a woman a zygote or an embryo formed from a gamete from a person known to be dead; or

(d) form a zygote with sperm from a man known to be dead; or

(e) form a zygote, if the woman who produced the oocyte used to form the zygote is known to be dead."

57 In the ITA, as originally enacted. "gamete" had the same definition as that set out above. Other relevant definitions in s.3(1) were:

" 'embryo' means any stage of human embryonic development at and from syngamy."

" 'syngamy' means that stage of development of a fertilised oocyte where the chromosomes derived from the male and female pronuclei align on the mitotic spindle."

" 'zygote' means the stages of human development from the commencement of penetration of an oocyte by sperm up to but not including syngamy."

58 Section 43(c) was repealed by s.5 of the Infertility Treatment (Amendment) Act 2001 and s.43(d) and s.43(e) were repealed by s.22(4)(d)(ii) of the Health Legislation (Research Involving Human Embryos and Prohibition of Human Cloning) Act 2003 ("the 2003 Act"). The definitions of "embryo", "syngamy" and "zygote" were all repealed by s.5(2)(a) of the 2003 Act.

59 It was common ground that each of these limbs of s.43, whether as originally enacted or in its current form, contemplated a different situation. Otherwise they would simply be repetitive and otiose. Thus "gamete" in s.43(b) must mean "oocyte", because if it meant "sperm" it would be repeating paragraph (a). This meant s.43(b) was not relevant to the present situation.

60 It was submitted on behalf of the plaintiff that the possible treatment procedures for Ms Y would not contravene s.43(a) because there was no need to "inseminate" her with Mr X's sperm. (Although that term was not defined in the ITA its meaning is quite clear. The means of insemination could be natural through sexual intercourse or artificial). Instead, it was said that an embryo might be created in a test tube using Mr X's sperm and Ms Y's oocyte and that embryo could then be implanted in the plaintiff and given the repeal of s.43(c), that there was no longer a ban on that situation.

61 However, in the parliamentary debates on the 2001 Amendment Bill, the Minister for Health, Mr Thwaites, said:

"The bill removes the prohibition on the use of embryos formed using the sperm or egg of a donor who has died. The bill does not remove the prohibition on the use of gametes (that is, sperm or eggs) of a person who has died.

In the case where an embryo has been formed, the person who produced the other gamete used to form the embryo, in most cases the mother, has a very large interest in an expectation about the future access to the embryo. There is a very strong case for preserving the embryo to allow the mother the opportunity to have it implanted, rather than have the embryo destroyed.

The principal reason underpinning this amendment is to allow the use of embryos created with the sperm or egg of a donor who has died. For example, it will allow a couple who have received successful infertility treatment and who wish to have a sibling of the first or second child to have any further embryos, already created with the donor sperm or egg, implanted, despite the death of the donor.

Another result of the repeal of this provision is that a widow who had already commenced infertility treatment before her husband died will be able to have implanted the embryos created with his sperm and her eggs before his death.

...

There is no intention to remove the prohibition on the use of the sperm or eggs of a donor who has died. The act will still not permit the creation of embryos using the sperm or eggs of an already deceased person." [36]

62 Whilst the intention of the 2001 amendment to the ITA had been clearly stated by the Minister, there followed the repeal of s.43(d) and s.43(e) in 2003. This enabled the plaintiff to argue that the very prohibition which was said to have remained after the 2001 amendment, had itself been removed. Thus, it was argued, it was now lawful to form a zygote or an embryo with sperm from a man known to be dead.

63 Mr Quinn submitted that a narrow interpretation should be given to s.43 of the ITA and referred to R v Human Fertilisation Authority, Ex parte Blood[37], which dealt with similar legislative provisions in the United Kingdom. In that case, Lord Woolfe MR held that the fact that a similar section in the Human Fertilisation and Embryology Act 1990 (UK) created a criminal offence and that it interfered "with Mrs Blood's ability to have a child by her former husband" suggested that "a narrow interpretation" should be given to its provisions.[38]

64 The result of the argument before me was, therefore, that in my mind considerable doubt surrounded the meaning of important provisions of the ITA, and that, particularly after the amendments to s.43, it was not at all clear that the use of the sperm taken from a man after he had died was unlawful.

65 Part of Mr Quinn's answer to these difficulties arising under the ITA was that it would be open to the plaintiff to apply to the Authority, pursuant to s.56(2) of the ITA, for permission to take her late husband's sperm out of Victoria to a place either in Australia or overseas where she could lawfully use it to become pregnant. Reference was made to the Authority's ability to impose conditions on its approval (s.56(2)) and to "exempt a person in relation to the gamete or embryo from compliance" with certain specified sections of the Act and "any other prescribed provisions of the Act or the regulations", if the Authority was satisfied that:

"(a) the gamete or embryo will be used in a manner which is consistent with this Act; and

(b) there are special circumstances which warrant the exemption."

(s.56(5) of the ITA.)

66 In my opinion, s.56 of the ITA is unlikely to assist the plaintiff because of the fact that Mr X has arguably not complied with the consent requirements. It was therefore not surprising that the Authority's Guidelines stated that:

"Section 43 of the Act contains a clear prohibition in relation to the use of gametes from someone known to be dead. ...

Applications for the import or export of gametes from someone known to be dead are still governed by this prohibition. The Authority will consider applications requesting the export of gametes from someone known to be dead, on a case by case basis. As a general policy, the Authority will not approve such applications as the intended use is not consistent with the principles and requirements of the Act. The Authority may depart from this policy in appropriate or exceptional circumstances." [39]

I was also informed that the Authority had under s.56(2) of the ITA refused the applicant in AB permission to export the sperm interstate.

67 Another answer to the difficulties suggested on behalf of the plaintiff was that Ms Y might be able to store Mr X's sperm for up to 10 years (s.51(1)(b)(i)) or longer with the approval of the Authority (s.51(1)(b)(ii)) and that the legislative requirements might be changed in the meantime. Apart from the fact that this was purely speculative, the submission still ran up against the lack of consent and counselling problem, which I consider would be highly unlikely to be changed retrospectively. I therefore reject this argument.

Conclusion

It seemed to me, therefore, that very difficult issues concerning the construction of the provisions of the ITA were raised by this application, and that, despite the helpful submissions by all parties, there would not be sufficient time to resolve them finally before the application might be rendered futile by the inability to remove the spermatozoa and associated tissue relatively soon after the death of Mr X. As I have mentioned, he in fact died on the night of the second day of the hearing. In my opinion, the way forward was to follow the example of those Judges, in particular the Victorian Judges, who had drawn a distinction between the making of an order for the removal of the spermatozoa and associated tissue and any subsequent order as to the use which might be made of that tissue.

68 I was satisfied that the Court had inherent jurisdiction to make the orders sought, at least on the basis of treating the application as akin to an interlocutory injunction and considering whether it raised a serious question to be tried. Despite the problems for the plaintiff raised by the ITA I was not yet persuaded that I should conclude that there was a statutory prohibition in Victoria on the use of sperm from a deceased person. In the words of Coldrey J, that was "an issue for another day."[40] In those circumstances, like Atkinson J, I considered that the balance of convenience clearly required that the application be granted. If it was refused, then the plaintiff could never become pregnant by the deceased. If it was granted, then that possibility remained open to the plaintiff, subject also to further consideration and approval by the Court. Accordingly, I gave the indication referred to above that, in the event of Mr X's death, I was disposed to grant the application, and subsequently I made the orders in question.

69 One final comment. I accept that there will be emotional stress on an applicant in circumstances such as the present, even to the extent that it might be considered that an application was not "a result of careful or rational deliberation."[41] Nevertheless, in my respectful opinion, the reasoning of O'Keefe J and Chesterman J on this particular aspect, as set out above, means that the opportunity for calm and mature consideration is forever denied to an applicant. I am not persuaded that in the exercise of any discretion the concern expressed by their Honours is entitled to the weight which they gave it.

Subsequent Developments

70 Not long after I made the order I was informed by the plaintiff's lawyers that tests on the spermatozoa and associated tissue removed from the body of Mr X had revealed that conception would not be possible. This meant that there would be no further application to the Court for permission to use the sperm and that the "issue for another day" would not be resolved in this proceeding.

71 Secondly, in the far too long a period between the making of the order and the publication of my reasons, application was made to the Court by Ms AB for certain declarations concerning the use of the sperm removed from the body of her deceased husband pursuant to the order of Gillard J. The judgment of Hargrave J[42] in respect of that application has determined many of the debatable points considered by me in the above reasons.

[1] [1982] HCA 73; (1982) 151 CLR 491 at 509

[2] [1989] HCA 45; (1989) 168 CLR 1 at 16 per Dawson J

[3] [1989] HCA 45; (1989) 168 CLR 1 at 16

[4] [1995] HCA 40; (1995) 184 CLR 1

[5] [1995] HCA 40; (1995) 184 CLR 1 at 16

[6] Unreported, 23 July 1998, Gillard J (BC9803488)

[7] Unreported, 23 July 1998 (BC9803488) at 21

[8] Unreported, Coldrey J, 1 June 2004

[9] Unreported, Coldrey J, 1 June 2004, at p.4

[10] Unreported, Coldrey J, 1 June 2004, at p.5

[11] [2000] NSWSC 358; (2000) 49 NSWLR 231

[12] [2000] NSWSC 358; (2000) 49 NSWLR 231 at [12]

[13] [2000] NSWSC 358; (2000) 49 NSWLR 231 at [15]

[14] [2000] NSWSC 358; (2000) 49 NSWLR 231 at [69] - [72]

[15] [2001] 2 Qd R 35

[16] [2001] 2 Qd R 35 at 37

[17] [2001] 2 Qd R 35 at 38

[18] [2001] 2 Qd R 35 at 41

[19] See Williams v Williams (1882) 20 Ch D 659 at 662-665 per Kay J

[20] [1908] HCA 45; (1908) 6 CLR 406

[21] [1908] HCA 45; (1908) 6 CLR 406 at 414

[22] [2001] 2 Qd R 35 at 39

[23] [1996] EWCA Civ 1301; [1997] 1 WLR 596 at 600

[24] Pierce v Swan Point Cemetery (1872) 14 Am Rep 667 at 676-677

[25] [2001] 2 Qd R 35 at 40

[26] [2001] 2 Qd R 35 at 41

[27] [2003] QSC 2

[28] [2004] 2 Qd R 595

[29] [2004] 2 Qd R 595 at 597-598

[30] The Shorter Oxford English Dictionary p. 2349

[31] See s.3 of the ITA

[32] [2000] NSWSC 358; (2000) 49 NSWLR 231 at 235

[33] [2001] 2 Qd R 35 at 36

[34] [2000] FCA 1009; (2000) 99 FCR 116

[35] See ss.121 and 122 of the ITA, in particular s.122(1)(b) and (c)

[36] Infertility Treatment (Amendment) Bill, Second Reading Speech, Legislative Assembly, 27 September 2001, p.762

[37] [1997] 2 WLR 806

[38] [1997] 2 WLR 806 at 815

[39] Infertility Treatment Authority Guidelines for the Import or Export of Gametes and Embryos, August 2003, para.3.2

[40] Unreported, Coldrey J, 1 June 2004, at p.5

[41] Re Gray [2001] 2 Qd R 35 at 41 per Chesterman J

[42] AB v The Attorney-General for the State of Victoria [2005] VSC 180