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[2015] ACTSC 100
General information, not legal advice.
Supreme Court of the ACT
2015-04-24
Mossop M
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Roblin v The Public Trustee for the Australian Capital Territory & Anor
PERSONAL PROPERTY - definition and classification - whether cryogenically stored semen from a person constitutes property which, upon the death of the person and intestacy, forms part of the person's estate - whether arrangement between person and second defendant constituted a bailment
Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207
Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406
Hecht v Superior Court of Los Angeles county (Kane) (1993) 20 Cal Rep 2d 275
R v H, AE (No 2) [2012] SASC 177
R v H, AE (No 3) [2013] SASC 196
Re Estate of Edwards (2011) 81 NSWLR 198
Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1
The Public Trustee for the Australian Capital Territory (First Defendant)
Labservices Pty Limited ACN 009 241 105 as trustee of the Labservices Unit Trust trading as The Canberra Fertility Centre ABN 48 338 361 486
1. This case raises the question whether cryogenically stored semen obtained from a person at his request and prior to his death is personal property which, upon intestacy, forms part of his intestate estate for the purposes of the Administration and Probate Act 1929 (ACT). In my view, the stored semen is personal property and does form part of his estate.
2. Jerome Stuart Pink died of cancer on 3 April 2012. He was 26 years old. The plaintiff, Amelia Roblin, is his widow. She is a citizen of Canada. She was 24 years old at the date of her husband's death and is now 27 years old. The couple were married one month before Mr Pink, who I will refer to as Jerome, died.
3. The couple's relationship commenced in January 2006 in Canada when both were studying at the University of Toronto. Jerome was an exchange student and the plaintiff was a full-time domestic student. The plaintiff travelled to Australia in 2007. Prior to that, she and Jerome had discussed the possibility of marriage and children. When she was in Australia they agreed that they would like to eventually be married and have children together after university and a few years of stable work and income.
4. Jerome was diagnosed with cancer alveolar rhabdomyosarcoma of the foot in January 2009. At that time their relationship remained strong. The plaintiff was living in Canada finishing her undergraduate degree. It took her about a week to get an Australian visa approved and fly to Canberra. Prior to her arrival, when it became clear that chemotherapy and radiation would be necessary, the treating doctors recommended that Jerome make a sperm deposit because it was likely that the treatment would affect his fertility.
5. Two sperm samples were frozen by the Canberra Fertility Centre on 26 and 28 January 2009. On 26 January 2009 Jerome signed a document headed "Request for cryopreservation and storage of semen", which set out, in a series of paragraphs, conditions which the documents records that he understood and accepted. Relevantly for present purposes is paragraph 10, which provides:
Unless otherwise prevented by requirements/obligations of relevant legislation, guidelines, wills, court orders, ethics committee decisions, and clinic policy, I understand that in the event of my death or permanent disability the frozen semen will be disposed of by the Canberra Fertility Centre.
6. During the chemotherapy and radiation therapy between February 2009 and March 2010 the plaintiff does not recall any specific conversation about the sperm. Following completion of the treatment, Jerome flew to Canada in April 2010. He explained at that point that he had been told by his doctor that there was a 5% chance of him being alive in five years time. At about this time Jerome proposed to the plaintiff and she accepted. Jerome's illness relapsed in September 2010. His prognosis was terminal.
7. In June 2011 Jerome told the plaintiff that he would like to have a child straight away but, having regard to the circumstances, they chose not to attempt that. On several occasions he discussed with the plaintiff his plans for his sperm. Those conversations were consistent with an expectation that the sperm would automatically go to the plaintiff with the rest of his estate upon his death.
8. In mid to late 2011, as Jerome's condition worsened, there was an occasion when he had a conversation with the plaintiff in which he specifically referred to his desire that she make use of his sperm after he died. He also discussed with her the possibility that his sperm might be used by two lesbian friends of the couple who had previously raised with them their desire to have children but the difficulty in locating a suitable sperm donor. He indicated his intention to give the sperm to the plaintiff and the other couple. In late 2011 or early 2012 there was a further discussion in which Jerome made it clear that he hoped the plaintiff would share his sperm with the other couple.
9. Jerome did not leave a will. After his death, his intestate estate was administered by the Public Trustee.
10. In August 2012 the plaintiff contacted the second defendant, the Canberra Fertility Centre, and enquired about transferring the sample into her name if that was necessary in order that she have the option to use it later on. She was told that the centre was legally obliged to destroy the deposit since Jerome had died. The plaintiff was told that if she informed the Centre that she was obtaining legal advice and continued to pay the annual storage fee then the Centre would ensure that the sample was not destroyed.
11. The evidence of Amelia describes her current circumstances and her relationship with the lesbian couple who Jerome contemplated might make use of the sperm. Having regard to the manner in which the case was argued it is not necessary to make any specific findings in relation to the particular circumstances of Amelia or the other couple, except to say there is nothing in the evidence which would, as a discretionary matter, weigh against the making of the orders sought.
12. The proceedings were commenced by originating application filed 15 April 2015. The originating application filed at that time was amended on 16 April 2015 so as to join the Public Trustee for the Australian Capital Territory and Labservices Pty Limited as trustee of the Labservices Unit Trust trading as the Canberra Fertility Centre as the first and second defendants respectively.
13. The amended originating application sought seven orders, only five of which were pressed at the hearing on 16 April 2015. Those orders were:
14. As at 16 April 2015 the amended originating application had not been properly served on the Public Trustee or the Canberra Fertility Centre although there was some evidence in relation to each that the orders would not be opposed. The proceedings were adjourned until today so as to permit proper service of the amended originating application and so as to determine whether or not either defendant wished to be heard against the making of orders.
15. Both defendants filed submitting appearances. The second defendant filed a submitting appearance which was qualified in relation to orders 3 and 4. I will deal with the issues that the qualified submitting appearance raises at the conclusion of these reasons.
16. The Administration and Probate Act 1929 (ACT) defines "intestate" and "intestate estate" in a manner that makes it clear that personal property of a deceased which is not effectively disposed of by will is encompassed by the concept of intestate estate. The definitions are as follows:
intestate means a person who dies on or after 1 July 1967 and either does not leave a will or leaves a will but does not dispose effectively, by the will, of the whole or part of his or her real or personal property.
intestate estate, in relation to an intestate, means -
(a) for an intestate who leaves a will - the real and personal property of the intestate that is not effectively disposed of by the will; or
(b) in any other case - the real and personal property of the intestate.
17. For the purposes of the Administration and Probate Act 1929 (ACT), "property" is defined in the Legislation Act 2001 (ACT) as follows"
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
18. Section 45 of the Act requires an intestate estate to be dealt with as follows:
45 Executor or administrator to hold property of intestate on trust for persons entitled
The personal representative of an intestate holds, subject to his or her rights, powers and duties for the purposes of administration, the intestate estate on trust for the persons entitled to it in accordance with this division.
19. The plaintiff is entitled, under Schedule 6 of the Act to the whole of the estate including, if it forms part of the estate, the semen samples stored by the second defendant.
20. As a result of these provisions, whether or not the stored semen forms part of Jerome's estate depends upon whether or not it was personal property of Jerome prior to his death.
21. It is important to recognise that, while there are a significant number of cases that have dealt generally with the status of human sperm following the death of the donor, different issues arise in relation to sperm taken with consent prior to death than in relation to sperm taken after death. The latter situation picks up the authorities following from the decision of the High Court in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 and raise different issues to those which arise in the former situation: see Doodeward; Re Estate of Edwards (2011) 81 NSWLR 198; R v H, AE (No 2) [2012] SASC 177, R v H, AE (No 3) [2013] SASC 196. It is only the former situation, namely sperm stored with consent prior to death, which is relevant in the present circumstances and this narrows the range of authorities which need to be considered. Those cases are uniform in the view that stored sperm provided by a man prior to his death constitutes property.
22. The case of Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331 involved an application made under the rules of the Western Australian Supreme Court to permit tests to be conducted on tissue specimens of a deceased person in order to determine whether or not the plaintiff was the daughter of the deceased. Those tissue specimens had been taken during surgery while the deceased was alive. The application was opposed on the ground that the body tissue in question was not "property" within the meaning of the relevant court rules. Master Sanderson recorded that there was no decision in Western Australia, Australia or the United Kingdom directly on point. Furthermore, there was no legislation which dealt with the question. The outcome of the application was therefore determined by whether or not, as a matter of law, the body tissue of the deceased was property.
23. His Honour referred to the decision of the High Court in Doodeward but concluded (at [14]) that it was not directly relevant to the matters at issue in the application. He referred with approval to the discussion in N Palmer and E McKendrick, Interests in Goods (2nd ed, 1998) at page 44 to the effect that to apply the "no property" rule to validly donated human tissue would "open up a cavernous regulatory vacuum which will rapidly widen as umbilical cords, frozen blood vessels, bones, joints and freeze-dried nerves (to name just a few) join blood and blood products as items of storage in tissue banks." He also referred to the report of the Australian Law Reform Commission, Human Tissue Transplants, Report Number 7 (1977), which suggested that there should be no need to create property rights in human tissue removed during surgery. His Honour concluded:
24. In Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1 the Court of Appeal in England was addressing a case involving men who had been diagnosed with cancer and who provided samples of semen for frozen storage in the hospital's fertility storage unit prior to undergoing chemotherapy. The requisite storage temperature was not maintained and the samples perished. Proceedings were commenced alleging a want of care by the hospital and claiming damages for mental distress or psychological injury. The hospital admitted breach of duty to take reasonable care but denied liability. The Court of Appeal upheld the trial judge's conclusion that damage inflicted to a substance generated by a person's body after its removal for storage purposes did not constitute bodily or "personal" injury to them and hence damages to the sperm was not a personal injury and no damages could be recovered. However, the Court held that since the plaintiffs had ownership of the sperm for the purposes of claims in negligence they had sufficient rights in relation to the sperm to render them capable of having been bailors. The Court held that there had been a gratuitous bailment of the sperm by the plaintiffs to the storage unit and liability as a gratuitous bailee was established in principle. While the Court referred to the decision of the High Court in Doodeward it concluded that developments in medical science "now require a reanalysis of the common law's treatment of and approach to the ownership of parts or products of a living human body" ([45]). The Court reasoned that the men had ownership of the sperm which they produced, the sole object of their production of the sperm being that in certain events it might later be used for their benefit, and concluded that no person other than each man had any rights in relation to the sperm which he produced. This then led to the consideration of the issues of bailment which had been argued. There was a recognition of the rights of property in the bailor, which entitled him or his representative to call for the property's return subject to the terms of the contract between him and the bailor.
25. In Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207 the husband of the applicant had arranged for samples of his sperm to be stored by the respondent, an IVF clinic. No written directive was provided to the respondent as to the use of the samples in the event of the husband's death. Upon the death of the husband the respondent informed the applicant, as the personal representative of the deceased that, in accordance with guidelines by which the respondent was bound, the semen could no longer be stored and could not be used to facilitate a pregnancy. The applicant sought to restrain the respondent from destroying the stored samples. Justice White identified that the Succession Act 1981 (Qld) permitted a person to dispose of by will any property and that the question for determination was whether sperm extracted and stored can be described as property and could form part of Mr Bazley's estate ([16]). Her Honour referred to the fact that at common law, a living human body is incapable of being owned or possessed and that the decision in Doodeward recognised limited circumstances where there could be a rightful possession of an unburied human body. Her Honour referred to the Californian decision of Hecht v Superior Court of Los Angeles county (Kane) (1993) 20 Cal Rep 2d 275, in which it was held that the deceased who had deposited cryogenically preserved sperm at a sperm bank "had an interest, in the nature of ownership, to the extent that he had decision-making authority as to the use of his sperm for reproduction" and that was sufficient to constitute property within the meaning of the relevant probate law. She also referred to the decision in Yearworth, which I have referred to above.
26. Adopting an approach consistent with the decision in Yearworth, White J 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. Any extra costs associated with that redelivery would be at the applicant's expense. Such conditions may be imposed by r 250, if necessary.
(footnotes omitted)
27. In the light of these authorities, in my view, it is very clear that the semen stored by the second defendant in these proceedings is property within the meaning of the Administration and Probate Act 1929 (ACT). By the operation of s 45 of that Act the property was held on trust by the first defendant for the plaintiff.
28. The mere fact that the semen was formerly part of a human body is not sufficient to deny that it is property. The fact that the sperm constitutes human gametes is not sufficient at common law to take it out of the conception of property. There has been no legislative intervention that requires it to be treated differently to other material that might constitute property because it was formerly part of a human body, or because of its particular status as being human gametes.
29. In my view, the conclusion expressed by White J in the passage quoted above accurately describes the situation in the present case. In other words, the semen currently stored by the second defendant is property, the ownership of which was vested in the deceased while he was alive and, upon his death, in his personal representatives. The relationship between the second defendant and the deceased was one of bailee and bailor because, so long as the storage fees were paid and contract for storage maintained, the second defendant agreed to store the semen. While the relationship could come to an end in the circumstances contemplated by clause 10 of the "Request for cryopreservation and storage of semen" the bailor's personal representative maintains ownership of the semen and can request the return of the property. 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. In my view, clause 10 of the request empowered, but did not compel, the disposal of the semen in certain circumstances. The drafting of that clause is consistent with the analysis that I have adopted above, in that it recognises the capacity to dispose of the semen by will.
30. As a consequence of this conclusion, it is in my view appropriate to make the declaration to the effect of that sought in order 1. I will also make order 2. Although on the evidence there is no threat that the sperm may be destroyed, the making of order 2 will make it clear what the obligations of the second defendant are. I note in this regard that the second defendant submitted to such an order.
31. In relation to proposed orders 3 and 4, the submitting appearance of the second defendant was qualified by a requirement that any such order be varied to require that the person to whom the sperm sample is released be a person "authorised to deal with human tissue samples". Precisely what is meant by that is not clear. In order to not further delay the resolution of these proceedings and to deal with them in a manner which minimises the costs incurred by the parties, I will deal with the uncertainty of the submitting appearance by not making any order to the effect of orders 3 and 4, which would compel the transfer of the semen sample. Instead, by making the declaration in order 1 and also giving liberty to apply as contemplated in order 7, I will permit the parties to resolve administratively the consequences of the declaration that I have made. I would anticipate that, upon the declaration being made, the first defendant would do what is necessary to formally demonstrate that the sample was distributed in kind to the plaintiff. On that occurring the second defendant would then be in a position to give effect to that ownership. If that was not sufficient, then the parties would be able to seek such further orders as were necessary to permit the sample to be dealt with by the plaintiff, either by consent or, if there was no consent, after a further hearing.
1. The Court declares that the spermatozoa of Jerome Stewart Pink presently under the control and supervision of Labservices Pty Limited ACN 009 241 105 trading as Canberra Fertility Centre ('the Sperm sample') is the property of the estate of Jerome Stewart Pink.
2. The Second Defendant, as long as the fee for storage is paid, is not to destroy the Sperm Sample.
3. The parties are given liberty to relist the matter with respect to any further orders necessary to give effect to orders 1 or 2.
I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.
Roblin
The Public Trustee for the Australian Capital Territory and Labservices Pty Limited as trustee of the Labservices Unit Trust trading as The Canberra Fertility Centre [2015] ACTSC 100
(1908) 6 CLR 406
(2011) 81 NSWLR 198
(2000) 22 WAR 331