The decision of the respondent, made at its meeting on 17 August 2005, is set aside. In lieu of that decision, the Tribunal approves the export from Victoria of frozen sperm taken from XZ, subject to the following conditions.

1 The sperm must be transferred directly to Sydney IVF Limited.

2 The sperm must only be used under the control and supervision of Sydney IVF Limited.

3 The sperm may only be used in a treatment procedure or procedures using gametes of YZ to produce an embryo or embryos to be implanted in YZ.

4 Any live birth resulting from the use of the sperm must be reported to the Infertility Treatment Authority and information must be provided to the Authority concerning the treatment procedure, the persons who provided the gametes, the person to whom the child was born, the sex of the baby and any other reasonable information required by the Authority.

Mr Justin O'Bryan of counsel instructed by Holding Redlich, solicitors

Ms Debbie Mortimer SC of counsel instructed by the Victorian Government Solicitor

1 This case raises important questions concerning the use of sperm harvested from a deceased man. On 27 May 2005 Hargrave J of the Supreme Court of Victoria determined a number of legal issues involving the same case: see AB v Attorney-General for the State of Victoria.[1] The present proceeding is different in character: it does not involve questions about the legality of proposed conduct, but about the scope, nature and exercise of a discretion to permit the sperm to be taken to another state of Australia to enable its use. In order to put these matters in context, I propose to set out relevant facts, outline the applicable statutory provisions, discuss the scope and nature of the relevant discretion, and then deal with the discretionary issues.

2 The applicant is a woman aged 36 years. For the purpose of this proceeding she is described as "YZ", but she is the same person as "AB" in the proceeding before Hargrave J.

3 YZ met her husband, who I will refer to as "XZ", in 1986 when each of them were 17 years of age. They were married some four years later and remained married until XZ died in a motor vehicle collision in Victoria on 12 July 1998. At that time YZ and XZ ordinarily resided in the Australian Capital Territory.

4 On learning of XZ's death, YZ travelled to Melbourne. Shortly thereafter she indicated that she wished to have sperm taken from XZ's body and stored so that she could subsequently use the sperm to conceive a child, or children, fathered by XZ. In order to achieve this an application was made to the Supreme Court of Victoria on 13 July 1998 for an order that sperm be removed from XZ's body and stored in accordance with the Infertility Treatment Act 1995 ("the Act"). Gillard J ordered that permission be given for this procedure and also ordered that the sperm so removed and stored not be used for any purpose without an order of the Court.

5 Following the order made by Gillard J, sperm was removed from XZ's body and placed in cryogenic storage at the Royal Women's Hospital in Melbourne, Victoria. The sperm remains in storage at this hospital.

6 In 1999 the applicant decided that she wanted to use the sperm to become pregnant. At that time section 43 of the Act prohibited the use of sperm of a man known to be dead in a fertilisation procedure. There was no similar provision in the Australian Capital Territory. However the export of the sperm to that territory required the approval of the Infertility Treatment Authority ("the ITA" or "the Authority"), a body established by the Act.[2] Accordingly, YZ applied for approval to export the sperm to the Australian Capital Territory to enable her to undergo assisted reproductive treatment. But the ITA refused the application on the basis that the sperm would be used in the Australian Capital Territory in a manner that would contravene section 43 of the Act.

7 In 2001 the Victorian Parliament made amendments to section 43 of the Act. This led to a further application to the ITA for approval to export the sperm to the Australian Capital Territory. Again the application was refused. Notwithstanding the amendments, the ITA took the view that the proposed use of the sperm would still be contrary to the requirements of section 43 of the Act.

8 In 2003 there were yet further amendments to section 43 of the Act. As a result, YZ commenced the proceeding that became known as AB v Attorney-General of Victoria. In that proceeding, she sought an order discharging the order made by Gillard J preventing the use of the sperm without an order of the court. She also sought declarations, that included a declaration that section 43 of the Act did not prohibit the carrying out on the applicant of an assisted reproductive procedure using the sperm by way of intracytoplasmic injection. This is a procedure whereby a man's sperm is directly injected into a woman's oocyte or ovum, outside the body, in order to produce an embryo which can be subsequently implanted in a woman's body.

9 On 27 May 2005 Hargrave J discharged the order made by Gillard J on 13 July 2005. Further he made a declaration to the effect that the proposed intracytoplasmic injection procedure was not prohibited by section 43 of the Act. However he also made a declaration that the proposed procedure was prohibited from being carried out in Victoria by reason of section 12(3) of the Act, which is a provision concerning the giving of consent by the donor of a gamete. As a consequence, the applicant was still unable to use the sperm in Victoria.

10 On 6 June 2005 the applicant once again sought the approval of the ITA to export the sperm from Victoria to the Australian Capital Territory for the purpose of using the sperm in an intracytoplasmic procedure with any resulting embryo being then transferred into the applicant's body. The Authority discussed the application at its meeting on 15 June 2005, when it decided to seek further legal advice. This advice was obtained from Mr Gavin Griffith QC. A copy of the advice was provided to the applicant and she was then invited to make further submissions concerning her application. By letter dated 5 August 2005 the applicant took up this opportunity and made detailed submissions to the Authority, addressing issues identified by Mr Griffith.

11 A meeting of the ITA took place on 17 August 2005. Prior to that meeting a draft letter, dated 15 August 2005, was circulated to members of the Authority. The draft letter was to the effect that the application for approval be refused. That letter was endorsed by the ITA at its meeting on 17 August 2005. In its letter the ITA noted that the application requested the Authority to approve the export of gametes[3] to another jurisdiction to be used for a purpose which was prohibited in Victoria. Although the Authority expressed sympathy for the applicant's position, it stated:

The Authority has weighed up all of the issues raised and considers that the balance in this case, and the particular precedent that may be set, does not allow the Authority to grant approval.

12 On 9 September 2005 the applicant applied to the Tribunal to review the Authority's decision. This application is made pursuant to section 149 of the Act, which allows applications to be made to the Tribunal for review of decisions of the ITA in relation to, inter alia, the grant or refusal of approval under section 56 of the Act (which deals with the export of gametes from Victoria). The nature of this review is review on the merits;[4] and, in exercising its review powers, the Tribunal has all the functions and powers of the ITA.

13 YZ now lives in country Victoria, near to the border with New South Wales. She told the Tribunal that, prior to the death of XZ, she and her husband had planned to have a family and intended to do so within the next few months. This evidence is supported by other family members, including the family of XZ. For example, XZ's mother explained that XZ and YZ were childhood sweethearts and their relationship was one of mutual support and encouragement. The father of XZ gave evidence that, prior to XZ's death, XZ and YZ had talked about buying a house, settling down and starting a family. I find that, prior to his death, XZ had clearly expressed an intention to have a child or children with YZ in the near future. I find that this was part of his life plan.

14 YZ has sought the advice of Dr Janelle McDonald, an accredited specialist doctor at a Canberra clinic operated by Sydney IVF Limited ("Sydney IVF"). The medical director of Sydney IVF is Professor Robert Jansen. Sydney IVF operates from both Canberra and Sydney. Upon consulting Dr McDonald, YZ was told that before Sydney IVF could provide treatment to her, using XZ's sperm, the procedure would need to be approved by its Ethics Committee.

15 In July 2005 the Ethics Committee of Sydney IVF told YZ that it would not object to her treatment, using the sperm of XZ, provided that the National Health and Medical Research Council's Guidelines[5] ("the NHMRC Guidelines") regarding consent were satisfied and that the ITA approved the export of the sperm (and did not impose restrictions that could not reasonably be met or would make the procedure illegal in New South Wales or the Australian Capital Territory).

16 On 21 October 2005 Sydney IVF informed YZ's solicitor that its Ethics Committee had taken the view that the requirements of the NHMRC Guidelines regarding consent had been satisfied in YZ's case. It is important to note that the decision of the Ethics Committee followed an investigation, which included the obtaining of statements of members of XZ's family and close friends of XZ. I infer that the Ethics Committee was well acquainted with the view expressed by XZ prior to his death.

17 It is now seven years since the death of XZ. In that time YZ has not remarried or repartnered; and she has told the Tribunal that she does not wish to do so. YZ desires to have children and could do so, using sperm from an anonymous donor. But she wishes to have a child, or children, using her late husband's sperm as she regards him as her life partner and wants him to be the genetic father of her children.

18 I do not find this to be a case where the applicant is motivated by grief. Although the decision she has made will not be the decision of most widows - many widows would choose to move on and find a new partner - I accept that her decision is rational and genuine.

19 I also find that YZ's decision is supported by family members, including key members of XZ's family. This is relevant in at least two respects. First, it suggests that YZ's desire to have a child using XZ's sperm is an expression of positive, not negative, emotions. Second, I am satisfied that any child produced from the gametes of XZ and YZ would be nourished, loved and supported, not only by YZ, but also by XZ's family.

20 A principal purpose of the Act is to regulate assisted reproductive technology procedures in Victoria.[6] To this end the Act sets forth a regulatory regime to treat infertility, including requirements in relation to donors of gametes. The Act also establishes the ITA for the purpose of administering the Act and exercising certain discretions pursuant to the Act. The Authority is comprised of members who have appropriate expertise and experience in relation to infertility treatment;[7] which is a factor that the Tribunal should take account of in reviewing decisions made by the Authority.

21 Part of the regulatory regime is contained in section 56 of the Act. Although this case is primarily concerned with section 56(2), it is desirable to set out the whole of the section.

(a) bring a gamete or embryo into Victoria outside the human body; or

(b) take a gamete or embryo from Victoria outside the human body.

Penalty: 240 penalty units or 2 years imprisonment or both.

(2) Sub-section (1) does not apply if the gamete or embryo is brought into or taken from Victoria in accordance with the written approval of the Authority.

(3) The Authority's approval under sub-section (2) may apply to a particular case or class of cases and may be subject to conditions imposed by the Authority.

(4) If a person has approval under sub-section (2) to bring a gamete or embryo into Victoria the Authority may exempt a person in relation to -

from compliance with sections 14(3) and (4), 15(2) and (4), 16, 17, 18, 19, 36, 37(3), 52(1)(b) and (3) and 55, Division 1 of Part 7 and any other prescribed provision of the Act or the regulations, if the Authority is satisfied that -

(c) similar procedures have taken place outside Victoria; and

(d) there are special circumstances which warrant the exemption.

(5) If a person has approval under sub-section (2) to take a gamete or embryo from Victoria the Authority may exempt a person in relation to the gamete or embryo from compliance with sections 52(2) and (3), 53, 89 and 90 and any other prescribed provision of the Act or the regulations, if the Authority is 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.

(6) An exemption granted under this section must be made in writing, and may relate to the whole or a part of a provision, and may be subject to conditions.

(7) A person granted an approval or exemption under this section must comply with any condition imposed by the Authority under this section.

Penalty: 240 penalty units or 2 years imprisonment or both.

22 The applicant seeks permission under section 56(2); she does not require an exemption under section 56(5). It is to be noted that the discretions vested in the Authority in section 56(4) and (5) are subject to the Authority being satisfied about particular matters. By contrast, the discretion contained in section 56(2) is not so confined. Indeed there is nothing in the sub-section that requires consideration of any specified factor.

23 Section 5 of the Act sets out guiding principles:

(1) It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act -

(a) the welfare and interests of any person born or to be born as a result of a treatment procedure are paramount;

(c) the interests of the family should be considered;

(d) infertile couples should be assisted in fulfilling their desire to have children.

(2) These principles are listed in descending order of importance and must be applied in that order.

24 It is necessary to refer to sub-sections 8(1) and (2) of the Act. These provide:

8. Persons who may undergo treatment procedures

(1) 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.

(2) Before a woman undergoes a treatment procedure she and her husband must consent to the carrying out of the kind of procedure to be carried out.

At first sight, this would seem to prohibit the applicant from undergoing a treatment procedure under the Act in Victoria. However in McBain v State of Victoria[8] Sundberg J of the Federal Court of Australia held that this sub-section was inoperative by reason of section 109 of the Constitution of the Commonwealth of Australia, because it was inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth), which deals with discrimination on the ground of a person's marital status. More accurately, Sundberg J held this to the extent that section 8(1) restricted the availability of any treatment procedure to a woman who is married and living with her husband on a genuine domestic basis or with a man in a de facto relationship. Sundberg J also held that various other provisions of the Act, which were dependent upon section 8(1), were also inoperative as being inconsistent with section 22 of the Sex Discrimination Act.

25 Section 8(3) is also relevant. This provides:

(3) Before a woman undergoes a treatment procedure -

(a) a doctor must be satisfied, on reasonable grounds, from an examination or from treatment he or she has carried out 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

(b) a doctor, who has specialist qualifications in human genetics, must be satisfied, from an examination he or she has carried out, that if the woman became pregnant from an oocyte produced by her and sperm produced by her husband, a genetic abnormality or a disease might be transmitted to a person born as a result of the pregnancy.

In his orders in McBain, Sundberg J specifically referred to section 8(3) of the Act, stating that this provision was also inconsistent with the Sex Discrimination Act to the extent that it depended upon the inoperative operation of section 8(1) of the Act.

26 The effect of the McBain decision is that the Infertility Treatment Act must be read on the basis that certain of its provisions are inoperative, or, at least, must be understood as being subject to some modification. An example, which is relevant in the present circumstances, is the reference to "couples" in section 5(1)(d) of the Act. By reason of the McBain decision, this principle (as expressed) may not operate, or may need to operate in a modified form, in circumstances such as the present. I discuss this matter later in these reasons.

27 It is also desirable that I set out the requirements of section 12(1) to (3), as it is section 12(3) which Hargrave J found is the barrier for the use of XZ's sperm in Victoria. These sub-sections provide:

(1) Sperm is not to be used in a treatment procedure to be carried out on a woman who is not the wife of the man who produced the sperm, unless before the sperm is used, that man consented to the use of the sperm in the kind of procedure proposed.

(2) An oocyte produced by a woman must not be used in a treatment procedure to be carried out on another woman unless, before the oocyte is used, the woman who produced the oocyte consented to the use of the oocyte in the kind of procedure proposed.

(3) An embryo must not be used in a treatment procedure to be carried out on a woman, if the sperm used to form the embryo is not the sperm of the husband of that woman, unless -

(a) before the embryo is formed, the man who produced the sperm consented to the use of the sperm to form an embryo to be used in the kind of procedure proposed; or

(b) the sperm has already been used to form an embryo outside the body of a woman to be transferred to the wife of the man who produced the sperm or to another woman and -

(i) the embryo is not required to be transferred to the body of that woman; and

(ii) that man has consented to the use of the embryo in the kind of procedure proposed.

28 The essence of Hargrave J's decision is that XZ was not the husband of YZ at the time the sperm was harvested from his body;[9] and, as the applicant wished to use that sperm to create an embryo which would then be implanted in her womb, section 12(3) of the Act is applicable. Further, as XZ did not consent to the use of the sperm to form an embryo (as he was dead at the time the sperm was harvested), the use of an embryo formed with that sperm was prohibited in Victoria.

The nature of the discretion under section 56(2)

29 This brings me to consider the nature of the discretion under section 56(2) and (3) of the Act.

30 In conferring a discretion on the Authority to approve the import or export of a gamete, or embryo, from Victoria, the Parliament has used broad and general language.[10] As counsel for the Authority put it: as the discretion is not expressly confined by the Act, it is largely a matter for the ITA (and, on review, the Tribunal) to determine what it regards as relevant and the comparative importance to be attached to relevant matters. Counsel also submitted, and I agree, that the nature of relevant considerations will be confined by the subject matter, scope and purpose of the Act.[11]

31 I have already set out relevant provisions of the Act which explain its subject matter, scope and purpose. As I have explained, a principal purpose of the Act is to regulate the use of in-vitro fertilisation procedures and donor insemination procedures. Further, the Parliament has given the Authority (and, on review, the Tribunal) a set of guiding principles to assist in the administration of the Act. The effect of the McBain decision is that certain provisions must be read down, or modified, in order to avoid inconsistency with the Commonwealth Sex Discrimination Act; and this complicates the task of identifying the scope and purpose of the Act.[12]

32 Both parties sought to derive support from other provisions contained within section 56 of the Act. The applicant sought to gain support from sub-section (4), which deals with the application of certain provisions of the Act where a gamete or embryo has been imported into Victoria. The sub-section allows the Authority to exempt a person from compliance with these provisions, or some of them, if it is satisfied, inter alia, that similar procedures have taken place outside Victoria. The Authority relied upon sub-section (5), which deals with the circumstance that a person has approval to take a gamete or embryo from Victoria. In this circumstance the Authority may exempt a person from compliance with certain sections of the Act if it is satisfied that the gamete or embryo will be used in a manner which is "consistent with the Act" and where there are special circumstances which warrant the exemption. The particular provisions in question relate to the storage of embryos and the confidentiality of persons who are donors or who undergo treatment.

33 What strikes me is that the Parliament has gone out of its way to identify matters which the Authority must be satisfied about before exercising the exemption powers in sub-sections (4) and (5), but has not made any similar provision in relation to the powers contained in sub-sections (2) and (3). In my opinion, this is significant. Thus the discretion the subject of the present proceeding should not be taken as confined in the same way that the discretions in sub-sections (4) and (5) are confined.

Guiding principles in section 5

34 I return to consider the guiding principles set out in section 5 of the Act. In my opinion, the Parliament has made it clear that it intends these to be the principles pursuant to which discretionary powers are to be exercised.

First guiding principle: welfare and interests of person to be born

35 The first of the guiding principles, and the most important, is that the welfare and interests of any person born, or to be born, as a result of a treatment procedure is paramount.

36 Counsel for the Authority submitted that this guiding principle should be read down. She argued that the Act does not require the ITA to be some kind of social gatekeeper and to apply general moral or social assessments of individuals or families in the exercise of its functions. She argued that the phrase "the welfare and interests" of any person to be born refers to a narrow category of welfare and interests, that is the interest in being able to know the identity of one's biological parents, one's genetic background and the like; and the effects (social, psychological or physical) of being, and growing up as, a child conceived by artificial rather than natural means.

37 I do not accept this submission. In my opinion, there is no basis for reading down this guiding principle. When the Parliament stated that the welfare and interests of a person to be born as a result of a treatment procedure is paramount, it meant just that. This means that the Authority (and, on review, the Tribunal) must consider whether a person, to be born as a result of a treatment procedure which is likely to occur if approval is given to export a gamete from Victoria, will be nourished, loved and supported.

38 The second guiding principle laid down by the Parliament is that human life should be preserved and protected. There was no suggestion that this principle was relevant in the present case.

39 The third guiding principle laid down by the Parliament is that the interests of the family should be considered. The word "family" is not defined in the Act. The concept itself is amorphous. Sometimes it means parents (or one parent) and a child or children. Sometimes it means any group of persons closely related by blood, such as parents, children, uncles, aunts and cousins. The real question is how the word should be construed in the context of the Act.

40 The concept of "family" usually requires a specified individual as a reference point: as in "my family", "his family" or "the baby's family". Indeed the members of the "family" may differ, depending on the reference point. In my opinion, "the family" which is relevant in the context of the third guiding principle will be the family into which the person born, or to be born, forms a part. In other words, the new child is the reference point. That family will nearly always include the child's mother, but could well include other persons. In my opinion, especially in light of the decision in McBain, the word "family" should be construed broadly. It may include other children of the mother. It may include the mother's husband or partner, whether a man or a woman. It may include children of the husband or the partner who are not also children of the mother. It may include adopted children. It will usually include the parents of the mother and the parents of the mother's husband or partner. It may include uncles, aunts or cousins. The notion of "family" does not have defined outer edges. It does not even require some blood relationship with the person whose family is under consideration (in the present context, the child to be born). This is not to say that the interests of all family members will be equally important; obviously the interests of core family members will be more significant than family members on the periphery. I should also observe that when the Parliament refers to the interests of "the family" it should not be taken to be referring to the interests of individual family members taken separately. Rather it is concerned about the interests of a unit.

41 I should also add that I would regard the parents and siblings of a deceased husband to be members of the family of that person's widow. In other words, the parents and siblings of XZ have a family relationship with YZ. Further, if YZ is to give birth to a child - especially if the child is produced using the sperm of XZ - the parents and siblings of XZ would be part of the relevant "family" that must be considered pursuant to the third guiding principle.

Fourth guiding principle: assisting the infertile to have children

42 The fourth guiding principle is problematic because the Act must be read in the light of the McBain decision. The principle refers to assisting infertile "couples" to have children. When enacted, it is clear that the legislature had in mind couples consisting of a woman and her husband (including a de facto husband). When it comes to a single woman (or a lesbian couple), one approach would be to simply ignore the principle. But consistency would also require the principle to be ignored in the case of heterosexual couples: which, in turn, would fail to give effect to the intent of the Victorian Parliament. Further, this would be so in circumstances where there was no threatened breach of the Commonwealth Sex Discrimination Act. Yet to take account of the principle in that category of case, but to ignore it in the cases of lesbian couples and single women, would be discriminatory, as the principle works to the advantage of the person seeking treatment.

43 In my opinion, the McBain decision requires section 5(1)(d) to be read in a modified form. The word "couples" could readily embrace lesbian couples. But it would be insufficient to extend the guiding principle to include lesbian couples. To avoid inconsistency with the Commonwealth Act, it is necessary for the principle to also apply in some way to single women. One formulation might be that the principle is that "infertile couples or persons should be assisted in fulfilling their desire to have children".

44 It would appear that the ITA makes a distinction between "clinical infertility" and "social infertility".[13] Hence it is desirable to say something about the word "infertile". In the context of a couple consisting of a man and a woman, a couple would be said to be infertile if either the man or the woman (or both) were infertile. Likewise a couple consisting of two women would be said to be an infertile couple, even if both women were fertile, because it takes a fertile man and a fertile woman to make a fertile couple. A woman without a partner might also be fertile; but, in my opinion, she can be regarded as infertile, in the sense intended by section 5(1)(d) of the Act, because, without a male partner (who is fertile), she cannot reproduce. Section 5(1)(d) of the Act is not concerned with individual fertility, but with the ability to reproduce naturally.

45 The approach I have outlined is consistent with, and supported by, section 8(3) of the Act. Indeed the type of "infertility" with which the Act is concerned is identified in this sub-section. It will be recalled that section 8(3) provides that before a woman undergoes a treatment procedure 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.

This provision must be read subject to the Commonwealth Sex Discrimination Act, as established by the McBain case. If we substitute the words "partner" for "husband", and if the woman has no partner (or her partner is a woman), then it would be a simple matter for a doctor to be satisfied that the woman was unlikely to become pregnant from an oocyte produced by her and sperm produced by her partner. Indeed, no other conclusion would be open. Thus the operation of section 8(3) of the Infertility Treatment Act does not turn on a distinction between "clinically infertile" or "socially infertile".[14] This conclusion is consistent with a view expressed by Professor Sheila A M McLean, Professor of Law and Ethics in Medicine at Glasgow University, that "it matters not whether infertility arises from the absence of a womb or the absence of a partner".[15]

46 In the special circumstances of this case, I have concluded that I should approve the export of the sperm to the Australian Capital Territory or New South Wales. I am strongly influenced by the guiding principles set out in section 5 of the Act, which the Parliament intends be given effect in carrying out functions under the Act. This will have the effect that treatment will occur in circumstances where the same treatment would be unlawful if it took place in Victoria. That is a relevant, but not decisive, consideration. It is not a decisive consideration for two reasons. First, the Tribunal must give effect to the guiding principles and in this case these strongly support the giving of approval. Second, in a federal system, proper recognition should be given to the fact that different States may choose to adopt different laws or policies. In particular, the applicant should not be prejudiced by the circumstance that her husband died in Victoria, even though her domicile (and that of her husband) was then in the Australian Capital Territory.

47 Welfare and interests of person to be born: I am satisfied that, if I allow XZ's sperm to be exported and as a result the applicant bears a child, the child will be loved and cared for. I am satisfied that the applicant has the will and the capacity to provide this love and care. I am also satisfied that the child will have the support of others - including the immediate family of XZ - which will enhance the child's welfare.

48 In my opinion, the fact that the child will not have a father is not a sufficient reason to refuse to consent to the export of the sperm. It is trite to observe that many children born naturally do not have a father - or a loving father - yet still live long and happy lives. Further, according to the Victorian Law Reform Commission, there is a growing body of methodologically rigorous studies that demonstrate that it is not family structure that determines emotional, social and psychological outcomes for children, but the quality of family processes and relationships.[16] Indeed, according to the Commission, the marital status requirement in the Act bears no relationship to the health and wellbeing of children.[17] To the extent that I can apply my own knowledge and experience to this issue, I agree with these observations.

49 Further, in my opinion, the fact that the child will be conceived after the death of one biological parent is not a sufficient reason to refuse to consent to the export of the sperm. According to the Victorian Law Reform Commission, there is little research on this question.[18] However, in the context of the present case, I draw comfort from the expressed attitude of relevant family members.

50 If there is such a thing as a perfect family, it is a loving, caring family; a family is not a perfect family simply because it consists of a father, a mother and children. As a society, we must get away from stereotypes. In my opinion, the fact that any child born as a result of the export of the sperm the subject to this proceeding will not have a father - or will be conceived from the sperm of a man who is dead - is not of major consequence.

51 The interests of the family: A decision to allow the export of the sperm will be in the interests of the family of any child born as a consequence. (It will also be in the interests of the applicant's family, to the extent that this is different or relevant.) Not only is it likely that such a decision will bring the various members of the family closer together, but also it will give them joy and inspiration.

52 Assisting an infertile person: A decision to allow the export of the sperm will assist the applicant in her desire to have children. This is an additional factor in favour of the grant of approval.

53 I should point out that if, by reason of the McBain decision, the fourth guiding principle is inoperative in the present case (or, indeed, in all cases), I would still regard it as relevant that a decision to allow the export of the sperm will assist the applicant in her desire to have children. We live in a society that values individual freedom. It is true that individual freedom may be subject to restrictions for the greater social good; but this does not render it irrelevant.

54 I have also given consideration to the outcome of this proceeding if I were to completely disregard the issue of assisting the applicant in her desire to have children. My view is that it would not change the outcome, as the other factors I have relied upon are sufficient to persuade me to my conclusion.

55 Victoria is part of the Commonwealth of Australia. As a federal nation, it is important that the laws of the Commonwealth and other States be recognised.[19] Many Australians move from State to State on a frequent basis. The benefits of living in one nation would be lost if one State sought to prevent activities in another State which were lawful in that State. Suppose that in Victoria hotels were required to close at 6.00 pm; and in New South Wales the closing hour was 10.00 pm.[20] If Victoria passed a law preventing the export of liquor, produced in Victoria, to New South Wales (on the basis that it would be used in a manner that was unlawful in Victoria), most would think that this was inconsistent with living in one country.

56 The federal character of the legal system is recognised in the Act: see, for example, section 56(4) and (5). These provisions acknowledge that other States will not adopt precisely the same approach to infertility treatment as Victoria. Hence terms are used such as "similar procedures" and "consistent with", rather than "the same as". Although section 56(2) does not impose any specific pre-condition on the exercise of the discretion to allow the export of gametes from Victoria, it is clear enough that one of the factors in the exercise of the discretion is that we live in a federal country where citizens freely move from State to State and each State may take a different approach to infertility treatment.

57 Hence I would not regard as decisive the fact that the export of XZ's sperm to New South Wales is designed to overcome the ban on its use in Victoria.[21] In forming this view I accept that section 12(3) of the Act is a substantive, not procedural, provision. I also accept that, together with the counselling requirements, the consent provisions are central provisions in the Act. But it is not as if the other States operated pursuant to Rafferty's Rules. Other States have different, but still responsible, methods of dealing with infertility treatment. In the exercise of a broad discretion, it is reasonable to respect and place faith in these other methods.

58 There is a circumstance in the present case which is particularly relevant. At the time XZ died, he and his wife were domiciled in the Australian Capital Territory. If XZ had died in the Australian Capital Territory and his sperm had been harvested after his death, the use of that sperm would not have been subject to the restrictive laws that have been enacted in Victoria. In the highly theoretical circumstance that XZ had contemplated whether or not to sign a form giving written consent to the harvesting of his sperm in the event that he died, he would have thought that this was unnecessary as he lived in the Australian Capital Territory.

Approval will not lead to irresponsible use of sperm.

59 The ITA submitted, in effect, that approval to export XZ's sperm from Victoria to New South Wales should be refused because it would not be used responsibly in New South Wales. If the sperm was to be used irresponsibly, I would certainly refuse to approve its export.

60 The ITA's argument turns on the NHMRC guidelines, as the ITA impliedly accepts that the sperm would be used responsibly in New South Wales if these guidelines were adhered to (and asserts the converse). According to the ITA submission, it is not open to conclude - and it was not open for the Ethics Committee of Sydney IVF to conclude - that the NHMRC guidelines would be complied with in the case of XZ's sperm.

61 There is no law in New South Wales that requires the use of the NHMRC guidelines. Rather the law of that State leaves the availability of infertility treatment to the medical profession; and, in turn, the profession has adopted the NHMRC guidelines.[22]

62 The NHMRC guidelines cover all activities associated with assisted reproductive technology. The guidelines identify ethical principles that must inform the conduct of clinicians and procedures adopted by clinics. The ITA relied upon clause 6.15 of the guidelines:

6.15 Use of gametes from deceased or dying persons or from persons in postcoma unresponsive states

When either parent dies before the birth of a child, this is generally regarded by society as tragic in that the child will not know that parent. The facilitation of conception in circumstances where the child born will never know one of his or her genetic parents is, by analogy, a serious act of profound significance for the person born. In addition, state or territory legislation may prohibit the use of gametes after a person has died.

Clinics must not facilitate use of gametes in such circumstances unless all of the following conditions are met:

•

a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes; or a person in a postcoma unresponsive state ("vegetative state") prepared clearly expressed and witnessed directions, before he or she entered the coma, consenting to the use of his or her gametes; or a dying person prepares clearly expressed and witnessed directions consenting to the use, after death, of his or her gametes; and

•

the prospective parent received counselling about the consequences of such use; and

•

the use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents.

6.15.1 As these situations arise infrequently and involve serious ethical issues, clinics should ensure that those involved seek advice and guidance from a clinical ethics committee on the ethical issues raised above and, if necessary, seek advice regarding the application of relevant laws.

The ITA pointed to that part of the first condition that requires that the deceased person has left "clearly expressed and witnessed" directions consenting to the use of his gametes.

63 The directions required by clause 6.15 of the guidelines do not have to be in writing.[23] If a person gives an oral direction, this can still be a witnessed direction, in the sense that a third person can state that the direction has been given. The direction must be clearly expressed, in the sense that it is not ambiguous. In the present context, the direction must be to the use of the person's sperm, either generally or to impregnate a particular person.

64 Essentially the ITA submits that Sydney IVF's Ethics Committee could not be satisfied that XZ clearly expressed a direction that his sperm be used to impregnate YZ after his death. I do not accept this submission.

65 I should start by observing that ethics committees are required to deal with difficult moral and philosophical issues which do not always permit a single answer. If the answers were always obvious, we would not need ethics committees. Courts and tribunals should not unreasonably confine the scope of decisions that ethics committees must make.

66 There is a danger that life, and decisions made about life, are over legalised. Consent is usually given by words or by conduct - not by legal instrument. This means that an assessment of whether or not consent has been given in a particular case will usually require consideration of the circumstances and will require inferences from the circumstances.

67 It follows that the issue of whether a direction has been expressed with sufficient clarity in a particular case will be partly a matter of judgment. In the present case there is ample evidence that XZ wished to have a family with YZ. In other words, there is evidence that XZ wished to produce a child, or children, using the gametes of XZ and YZ. This evidence was clearly expressed and witnessed. In my opinion, it is open for Sydney IVF's Ethics Committee to conclude from this evidence that XZ has consented to the use of his sperm to impregnate YZ even if he has died. This is so even though the more stringent test contained in section 12(3) of the Act may not have been satisfied in XZ's case.[24]

68 In any event, I am satisfied that, if XZ's sperm is exported from Victoria to be used at the Sydney IVF clinic to impregnate YZ, the sperm will be used responsibly. This is so even if the requirements of the NHMRC guidelines might not be complied with in the strict sense. The guidelines do not have the same status as a statute; and should not be interpreted or applied like a statute. The guidelines are intended to be just that - guidelines.

69 My conclusion that the sperm will be used responsibly is based on several factors. These include: the sperm is to be used at a reputable IVF clinic; the sperm is to be used to impregnate YZ, the long standing wife of XZ; my findings as to the welfare and interests of a child, or children, to be born as a consequence of the export of the sperm; the interests of the extended family of any child to be born; and the clear evidence concerning XZ's wish to have a family with YZ.

70 I conclude these reasons by making this observation. In my opinion, there is every reason to think that XZ would now want his sperm to be used to produce children mothered by YZ, if this is the course desired by YZ. Most people who die accept that they cannot, and should not, seek to rule from the grave.[25] Rather they leave on-going decisions to the living; especially to the living who they love or respect.

[1] [2005] VSC 180. The plaintiff in that case, that is "AB", is the same person as the applicant in the present case who is now described as "XY".

[2] See Part 9 of the Act.

[3] "Gamete" is defined in section 3 of the Act to mean either an oocyte (an ovum from a woman) or sperm (from a man).

[4] See section 51 of the Victorian Civil and Administrative Tribunal Act 1998.

[5] These guidelines are titled Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, September 2004. The guidelines are issued in accordance with the National Health and Medical Research Council Act 1992.

[6] See section 1 of the Act for a more detailed list of purposes.

[8] [2000] FCA 1009; 99 FCR 116. In Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 the High Court of Australia dismissed a related application in the same matter. In Pearce v South Australian Health Commission [1996] SASC 5801; (1996) 66 SASR 486 the Full Court of the Supreme Court of South Australia made a similar decision to that of Sundberg J.

[9] Compare Y v Austin Health [2005] VSC 427, per Habersberger J at [54].

[10] In his opinion, Mr Griffith QC observed that "... neither the Act, nor any other Victorian law is determinative of the manner of exercise by the Authority of its discretionary power to grant approval under section 56(2). By its terms, the power is at large."

[11] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at 39-40, per Mason J.

[12] It is obviously unsatisfactory that the Infertility Treatment Act has not been amended in the light of the McBain decision. The Attorney General has asked the Victorian Law Reform Commission to consider this matter. In my view it is important to clarify the Infertility Treatment Act in the light of the McBain decision.

[13] This issue is discussed by the Victorian Law Reform Commission in the discussion paper ART Position Paper One: Access, May 2005, at paragraph 2.5. The discussion paper states that different legal opinions on this matter have been received from Mr Peter Hanks QC and from Mr Gavan Griffith QC. See, also, Adiva Sifris, Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples[2004] MonashULawRw 11; , (2004) 30 Monash University Law Review 229, especially at pages 240-242.

[14] The decision in JM v QFG and GK [1998] QCA 228 may be of interest, although it deals with the different issue of whether it is discriminatory to refuse assisted reproductive services to a lesbian woman by reason of the fact that she engages in a "lawful sexual activity".

[15] Sheila A M McLean, Post-mortem Human Reproduction: Legal and Other Regulatory Issues (2002) 9 Journal of Law and Medicine 429 at 430.

[16] Victorian Law Reform Commission, ART Position Paper One: Access, May 2005, at paragraph 2.66. See also Dr Ruth McNair, Outcomes for Children Born of ART in a Diverse Range of Families, published by the Victorian Law Reform Commission. See also European Society of Human Reproduction & Embryology, Ethics and Law, Taskforce 11: Ethics of Posthumous Assisted Reproduction,

[17] Victorian Law Reform Commission, ART Position Paper One: Access, May 2005, at paragraph 2.68.

[18] According to Professor Don Chalmers, Dean of Law School, University of Tasmania, in Professional Self Regulation and Guidelines in Assisted Reproduction (2002) 9 Journal of Law and Medicine 414, at 426, "there is no evidence that Assisted Reproductive Technology poses any greater threat to the welfare of a child than any other birth" and "in fact, there are some developmental studies indicating that children do very well".

[19] The same principle applies to the Australian Capital Territory and the Northern Territory.

[20] This was the case in the 1950s and 1960s. It is well know that in border towns, such as Mildura, there was an exodus to hotels in New South Wales after 6.00 pm on many evenings.

[21] The English Court of Appeal in R v Human Fertilisation and Embryology Authority; ex parte Blood [1997] 2 WLR 807 took a similar view in the context of European Law.

[22] The full title of the guidelines is Ethical guidelines on the use of assisted reproductive technology in clinical practice and research. The guidelines were issued in September 2004, in accordance with the National Health and Medical Research Council Act 1992, and were prepared by the Australian Health Ethics Committee ("AHEC"), a committee of the NHMRC established by that Act.

[23] Counsel for the ITA referred the Tribunal to clause 9.4.1 of the NHMRC guidelines. But this clause relates to participants in an assisted reproductive technology procedure, not to the donor of gametes. Neither is clause 9.5 relevant, as it applies to participants in donation programs, not one off circumstances such as the present.

[24] In AB v Attorney-General [2005] VSC 180 at [92] Hargrave J said of the more stringent test in section 12 of the Victorian Act that implied consent was not a relevant consideration. He added that just because a married man wished to have a family it should not be assumed that consent to the use of his sperm in infertility treatment would necessarily be forthcoming if the man had considered the matter.

[25] Not everyone shares this view: compare Anne Reichman Schiff, Posthumous Conception and the Need for Consent, (1999) 170 The Medical Journal of Australia 53. See also Belinda Bennett, Posthumous Reproduction and the Meanings of Autonomy, [1999] Melbourne University Law Journal 13.