T (1983) 57 ALJR 285, In re F (In Utero) (1988) 2 All ER 1993, Doe in the Demise of Clark v Clark and Ors (1797) 2 HBL 400, Paton v Trustees of the British Pregnancy Advisory Service (1979) 2 All E 987, applied. Schofield v Ornell Colliery Co Ltd (1909) 1 KB 178 - 182, Watt v Rama (1972) VR 53, Roe v Wade [1973] USSC 43; (1973) 410 US 113, referred to.

Solicitors for the Respondent: Gunson Pickard and Hann

That a child, being the product of his father's semen and mother's ovum, implanted in the mother's womb subsequent to the death of his father is, upon birth, entitled to a right of inheritance afforded by law.

SLICER J The Public Trustee applies for the determination of the question whether two embryos, the product of the ova of the widow of a deceased person and semen of the deceased, are issue pursuant to the Administration and Probate Act 1936 ("the Act") and, if so, whether they were living at the date of death, namely 1 April 1995, or in the alternative do they become children of the deceased upon their being born alive.

2. In April 1991 G and S commenced living together. They wished to have children, and in August 1993, having difficulty with conception, the parties entered into an in-vitro fertilisation program conducted by a Hobart hospital. The procedure was successful and three of the five embryos produced were implanted in G. In May 1994 G gave birth to a son and in March 1995 the couple married. It had been their intention to have another child by way of the implantation of the remaining embryos. In April 1995 S died intestate. Letters of Administration of his estate were granted to the Public Trustee on 23 August 1995. The deceased died leaving four live children, three of whom were the issue of a previous marriage. By the operation of the Act, s44, G (as widow) is entitled to the payment of $50,000 together with one-third of the residue, and the children (as issue) the remaining two-thirds. The Act, s46(1) provides that where the residuary estate is directed to be held on trust for the issue of an intestate person, such shall be held:

"(a) In trust, in equal shares if more than one, for all or

any of the children ... of the intestate, living at the

death of the intestate, who attain the age of 18 years or

marry under that age ...".

3. The gross value of the estate is stated to be $179,000. The value of the residuary estate available for distribution to the children is not great and the Public Trustee is quite properly concerned that, if possible, any question of entitlement be determined at an early stage. Counsel appeared for the children of the deceased and there is no conflict of interest between them. Since public interest questions are raised by this application, the Court directed that the Solicitor-General be served with copies of the proceedings and, in consequence, the Director of Public Prosecutions appeared in the capacity of amicus curiae.

4. The question of whether it is appropriate for a court to answer questions raised while the interest of a child remains contingent was answered in the negative in In re Staples Owen v Owen (1916) 1 Ch D 322 but, as Sargant J observed at 326:

"I do not wish to express any doubt as to the jurisdiction

of the Court to make a declaration as to future rights when

all the parties are not present; that also seems to be a

matter of discretion rather than jurisdiction; ..."

See also McHenry v McHenry A61/1995 (unreported, available on SCALE) as to the discretion to make declaratory orders. Given the concern of the Public Trustee to preserve the estate I accept that it is an appropriate case for the exercise of discretion. If I decline to answer the question and a child is born, then the matter could require further litigation at a stage when the Public Trustee has made arrangements for the distribution of the residue.

5. G intends to proceed with the further implantation of the two embryos. If the procedure is successful, it is anticipated that a child will be delivered in or about December 1996. That procedure will be undertaken irrespective of any determination of the questions asked in this application.

6. The fertilised ovum (zygote) is formed by the indissoluble mingling of the chromosomes of the two parties, a process which occurs between 22 and 30 hours of penetration of the ovum by the spermatozoa. The zygote divides into two cells (24 - 36 hours) then four (40 - 50 hours). Some 50 - 78 hours after insemination, the zygote comprises a cluster of about 8 cells and is normally transferred to the uterus at this stage of development. In this case, one embryo has been frozen at a two cell stage of development, whilst the other is at the four cell stage. Whilst frozen, life processes are stopped, but retain the potential for subsequent growth. If thawed and successfully implanted into the uterus, the cells will continue to divide and develop. Cell division continues, resulting in the formation of the placental membranes and the embryo. In the event that the zygote is thawed but not implanted, the cells will continue to divide for some 24 - 48 hours but will thereafter regress and cease to be. In medical terms, the question asked by the Public Trustee relates to zygotes rather than embryos.

7. The common law has refused to confer legal rights on a human embryo or foetus unless, and until, it is born and has a separate existence from its mother (Attorney-General for the State of Queensland (Ex Rel Kerr) and Another v T (1983) 57 ALJR 285 and Re F (in utero) (1988) 2 All ER 193. Civil law recognised the maxim "infans conceptus pro natura labetur quoites de commodus ajus agiter" which means that the foetus enjoys certain privileges provided that it is born alive and viable (see Crimes Against the Foetus, Law Reform Commission of Canada 1989, Paper 58, p25, n62).

8. The foetus is considered to have potential or contingent legal interest which vests and becomes enforceable upon its live birth. Those contingent interests are recognised in the law of succession and tort (see Manns v Carlow (1940) VLR 282 and Watt v Rama [1972] VicRp 40; (1972) VR 353) and includes the right to seek provision from an estate under testator family maintenance legislation (V v G (1980) 2 NSWLR 366).

9. Criminal injury inflicted on a foetus was held to be culpable if the child was born. In R v Martin, unreported Western Australia 8 December 1995, Owen J determined that a harmful act committed by an accused person to a foetus was capable of amounting to manslaughter if the child was born alive but subsequently died as a consequence of the earlier infliction of harm.

10. The law has long recognised that a posthumous child is entitled to share equally with those who were born in the lifetime of the parent. It regarded an infant, en ventre sa mere, as born for the purpose of succession. (See Doe in the Demise of Clark v Clark and Ors [1795] EngR 4049; (1797) 2 HBL 400, 126 ER 617, and also Goddale v Gawthorne [1854] EngR 800; (1854) 65 ER 443; In re Burrows, Cleghorn v Burrows (1895) 2 Ch D 497; In re Griffiths' Settlement, Griffiths v Waghorne (1911) 1 Ch D 246) although it remained a question of interpretation of the document affording benefit (Elliot v Joicey [1935] UKHL 3; (1935) AC 209).

11. In Re Alsopp (deceased) Cardinal v Warr and Ors (1967) 2 All ER 1056, the English Court of Appeal interpreted a clause in a will reading "such of (their) children as shall survive me" as including children born after the death of the testator and that the word "survive" should be read as meaning, "be living after me". A similar approach was taken by Cosgrove J in Re Bruce (1979) Tas R 110 at 123 in which his Honour considered whether a grandchild en ventre sa mere at the date of a death relevant to the operation of the will, was to be regarded as a member of a class of descendants of another person. His Honour found that the child was en ventre sa mere at the relevant time and stated at 123:

"Blasson v Blasson (1864) 2 De G J and S 665, Villar v

Gilbey (1907) AC 139, and Elliot v Joicey (Lord) (1935) AC

209 are high authorities for the proposition that where

words such as 'born' or 'living' or 'surviving' at a stated

time are used in a will to describe the class of children or

issue designated by the testator, then a child en ventre sa

mere at the stated time will be deemed to be born at that

time, if, by so deeming, the child will benefit under the

will. The inclusion of such a child in such a class is a

'fictional construction' which will only be resorted to if

it 'will secure to the child a benefit to which it would

have been entitled if it had been actually born at the

relevant date'. (Elliot v Joicey (supra) at p 233, per Lord

Russell of Killowen). The policy of the law which rejects

the literal interpretation of the testator's words in only

those cases where the child will benefit from a wider

interpretation is an act of benevolence towards the unborn

child. It is said to be justified 'as being within the

reason and motive of the gift' in each of the cases cited

above. But the application of the rule is never tested by

examining reason or motive, and where the inclusion of the

unborn child in a class would effectively exclude it from

some benefit under the will, it is excluded from the class.

One must conclude that the overt justification is mere

window-dressing, and that the truth is that the courts, out

of their own sympathy for the unborn, vary the

interpretation of the words so as to avoid any harshness to

the unborn which they consider would be involved in a

literal interpretation. This is done even where to do so

involves some harshness to the living, see, eg, Pearce v

Carrington (1873) LR 8 Ch 969."

12. The recognition of the rights of an unborn child is an artificial construct or fiction based on the proposition that a child, en ventre sa mere, is deemed to be born at the time of an occurrence so far as it is necessary for the benefit of that child. Fletcher Moulton LJ in Schofield v Orrell Colliery Company, Limited (1909) 1 KB 178 referred to the approach taken as a "peculiar fiction of law by which a non-existant person is to be taken as existing". Gillard J summarised the position in Watt v Rama (supra) at 376, when, after review of various authorities, concluded that

"... it must be accepted that there is a rule of law which

recognises that an unborn child may possess rights. This

implies there are correlative duties imposed on others in

favour of the unborn child. It also implies that an unborn

child is deemed to be a "person" where the right is to his

benefit, so that if he survives his birth and attains the

requisite capacity to institute proceedings ... he may do so

and obtain a remedy for the infringement when he was en

ventre sa mere."

13. But the right is one contingent on birth (Wilcox v Police (1994) 1 NZLR 243 at 250) and in cases where a party, in seeking to prevent a partner undergoing an abortion relies on the status of a foetus as affording a basis for the grant of injunctive relief, the courts have declined to recognise any inherent rights before birth (Paton v Trustees of the British Pregnancy Advisory Service (1978) 2 All ER 987 ((1979) QB 276); C v S (1987) 1 All ER 1230; Medhurst v Medhurst (1984) 46 OR 2d 263; Dehler v Ottawa Civic Hospital (1979) 25 OR 2d 748 (approved on appeal (1981) 29 OR 2d 677)). It has been determined that there is no jurisdiction to make an unborn child a ward of the state Re F (in utero) (supra).

14. The rationale common to those authorities is as stated by Sir George Baker P in Paton v Trustees of the British Pregnancy Advisory Service (supra) at 989 and (supra) at 279

"The foetus cannot, in English law, in my view, have any

right of its own, at least until it is born and has a

separate existence from the mother. That permeates the

whole of the civil law of this country ... and is indeed,

the basis for the decisions in those countries where law is

founded on the common law, that is to say, in America,

Canada, Australia and, I have no doubt, in others."

15. In the United States the Supreme Court regarded the viability of the foetus, independent of the mother, as the commencing point for the existence of rights (quoted in C v S (supra)).

"With respect to the State's important and legitimate

interest in potential life, the 'compelling point' is at

viability. This is so because the fetus then presumably has

the capability of meaningful life outside the mother's womb.

State regulation protective of fetal life after viability

thus has both logical and biological justifications". (Roe

v Wade [1973] USSC 43; (1973) 410 US 113 at 163.)

16. In Canada, a not dissimilar approach was taken in R v Mongertaler (1988) 1 SCR 30. In Tasmania, The Status of Children Act 1974, PtIII provides for the presumption of parenthood as the result of fertilisation procedures. The fact that the law permits a test not necessarily synonymous with medicine is evidenced by the Act, s5(1)(b), namely:

"(b) where a child is born to a woman within 10 months after

the marriage has been terminated by death or otherwise

dissolved and she has not remarried before the birth of the

child, the child shall, in the absence of evidence to the

contrary, be presumed to be the child of the marriage."

In 1994 the Parliament of Tasmania passed an amending Act No 42/1994 (yet to be proclaimed) extending that period to one of 44 weeks.

17. The Family Law Act 1975 (Cth), ss50 and 60B provides for a child born by an artificial conception procedure, which includes "the implantation of an embryo in the body of a woman".

18. The status and rights of a foetus can be summarised as follows:

- A foetus is not recognised, by the law, as a person in the

full legal sense.

- The law has long recognised foetal rights contingent upon

a legal personality being acquired upon its subsequent birth

alive.

- A child, en ventre sa mere, is not a human being. To be

human a child must have quitted its mother in a living

state.

- A child so born is by a legal fiction treated as having

been living at an earlier point of time and if by being so

treated the child would receive a benefit to which it would

have been entitled if actually born at that earlier time.

19. If such be the case the answer to the first question asked by the Public Trustee, namely, whether the embryos are issue, is no. The answer would be the same if a successful implantation in the womb had been performed at the time the question was posed.

20. It is the second question which causes difficulty. Do the embryos become children of the deceased upon their being born alive? Two issues arise from the question. The first is whether they were alive at the time of death, since the Administration and Probate Act, s46 refers to "children ... living at the death of the intestate". The Court is not concerned with any philosophical or biological question of what is life since the question relates solely to the status recognised by law and not to any moral, scientific or theological issue. The answer to the question must be no. There was no human in existence at the time of the death of the deceased. The second issue is whether once born, the child or children are cloaked with the legal fiction and deemed to have been born as of the date of death? The question can be approached by assuming that a child born in the manner under consideration seeks to claim its inheritance. The child would have standing because it could claim that there existed a dispute with the executor over a right claimed by that child. As a matter of policy, should the law distinguish between a child, en ventre sa mere, and his or her sibling who was at the same time a frozen embryo? In circumstances where the father dies after coitus, but before the ovum has been fertilised, should that child be denied the right to be treated as en ventre sa mere? Should a right by way of the application of a legal fiction be denied because medicine and technology have overtaken the circumstances existant in the 19th century when the legal fiction was applied?

21. The Status of Children Act 1974, s10A(2) provides that nothing in any provision of PtIII (which deals with fertilisation procedures and consequences) "affects the vesting in possession or in interest of any property that occurred before the commencement of this Act." The section neither affords nor detracts from any common law rights possessed by a child once born?"

22. The reports of various Law Reform Commissions have taken different approaches to the question of inheritance. The Report of the Committee of Inquiry into Human Fertilisation and Embryology (HMSO Cmnd 9314 London, 1984 par10.9), quoted in the New South Wales Law Reform Commission Report 49 1986 at 81, recommended that:

"Any child born by AIH who was not in utero at the date of

the death of its father shall be disregarded for the purpose

of succession to and an inheritance from the latter."

23. A Canadian Commission took a contrary view. The Ontario Report recommended the creation of an entitlement on the part of the posthumously conceived child to inheritance of a share in the undistributed estate of the father "as if the child were conceived whilst the husband was alive" (Ontario Law Reform Commission Report on Human Artificial Reproduction and Related Matters, volumes 1 and 2, 1985 at 182) quoted in New South Wales Law Reform Commission Report (supra).

24. In the United States, as of 1987, twenty five states had adopted laws which provided that the artificial insemination offspring is the legal child of the sperm recipient and her consenting husband. Hearings of House of Representatives Human Embryo Transfer (Ninety Eighth Congress Second Session August 1984) at 176 quoted in New South Wales Law Reform Commission Report (supra).

25. In its report In Vitro Fertilization Law Reform Commission 58 1988, the New South Wales Law Reform Commission recommended that:

"Recommendation 39

(i) the law should allow, and should not preclude, a

specific testamentary gift in favour of a posthumously

conceived child or a child born from a stored embryo.

(ii) where an ovum of a widow is fertilised in an IVF

procedure, by the posthumous use of her deceased husband's

semen and transferred to her by embryo transfer, the

resulting child should be recognised as the lawful child of

the dead husband except for the purposes of inheritance and

succession:.

(iii) the commission recommends that children conceived

posthumously as a result of IVF procedures and children born

from stored embryos should be able to make a claim against

the estates of their genetic parents under the Family

Provisions Act 1982".

26. The recommendations were based on the pragmatic ground that:

"the executor or administrator of the deceased's estate

could not confidently make a distribution of assets until

exhaustive investigations had been undertaken to ensure that

there was no possibility of the subsequent birth of persons

who may be regarded as children of the deceased. It is only

by excluding posthumously conceived IVF children from those

benefits that the problem can be overcome." (Law Reform

Commission 58 1988 p102).

27. The problem identified by the Commission is equally applicable to family provisions or testators family maintenance legislation.

28. The various commissions have recommended against the grant of inheritance rights because of practical difficulties. Those will remain even if recourse is permitted to testator family maintenance provisions. This court is not required to pay regard to such practical difficulties. The rule of perpetuities does not arise since its application in Tasmania has no bearing on the Administration and Probate Act and, in any event, the case involves the post mortem pregnancy of the deceased's widow, who is a life in being. The practical difficulties envisaged by the New South Wales Commission could be found in very few instances. (See The Parpalaux Case and Post Mortem Insemination (1984) 58 ALJ 627 at 629). No evidence was placed before the court relating to the protocols existant in the State concerning the length of storage of embryos. In its report of June 1985 the Tasmanian committee to investigate artificial conception and related matters recommended that "in the event of the death of a donor, any stored sperm of that donor must be discarded" (report recommendation 19 at 135) and that there be a limit of two children born as a result of donated embryos from the gameles of the same male and female donors and this limit to be reviewed at five yearly intervals (recommendation 41 at 137). If an estate has been distributed, then the ability to recover might be limited. An executor could not, however, be held responsible for an occurrence unless he had knowledge. Examples of how an executor, administrator or trustee can be afforded protection is provided by the Status of Children Act 1974, s6 or in the giving of an undertaking by those entitled to a share of an interest (Bullas v Public Trustee (1981) 1 NSWLR 641).

29. If an invitro child, born posthumously, is at birth the biological child of the father and mother, irrespective of the date of implantation, and in all other respects (except time) identical to a child en ventre sa mere then the legal principles applicable to a child en ventre sa mere should likewise be afforded to an invitro child. If a child en ventre sa mere is not regarded as living (in terms of law) but has a contingent interest dependent on birth, then in logic the same status should be afforded an embryo. That would be so whether or not two cells, four cells or a developed foetus was existant. In this case fertilization has occurred and, although in stasis, possesses a potential for live birth. If such be the case then it could be said to possess the same contingent rights as a sibling, en ventre sa mere The Court is concerned with contingent interest rather than the question of capacity or potential for life referred to by the New South Wales Law Reform Commission in its report Invitro Fertilisation Discussion Paper No. 2 DP 15 of 1987 (at 108 - 113).

30. The conclusion can be tested by the assumption that a person born invitro but posthumous to his or her father seeks redress as to the existence of a right. The Status of Children Act 1974, s10(1) permits the making of a declaration of paternity "whether or not the father or the child or both of them are living or dead". Section 10C(1) provides:

"Where a married woman, with the consent of her husband,

undergoes a fertlization procedure as a result of which she

becomes pregnant, the husband shall, for the purposes of the

law of the State, be treated as if he were the father of any

child born as a result of that pregnancy."

While s10A(2) does not afford any new inheritance rights, a person born as a consequence of an invitro procedure has the same status as a sibling and could obtain a declaration to that effect. That status would accord with that of a child en ventre sa mere at the date of the death of the father.

31. That a child, being the product of his father's semen and mother's ovum, implanted in the mother's womb subsequent to the death of his father is, upon birth, entitled to a right of inheritance afforded by law.