Gray J held that it was in the Court's inherent jurisdiction to make an order permitting the woman to remove and use any viable sperm from her husband.
Gray J states that
This is an application for an order to remove and preserve spermatozoa from the body of the applicant’s deceased husband. On 21 March 2011, I heard the urgent ex parte oral application. On that occasion, I granted the application and made orders in the following terms:
− that the Court is prepared to make orders sought by the applicant pursuant to the Court’s inherent jurisdiction;
− that spermatozoa be removed from the late H, AE deceased;
− that the process be undertaken at the Forensic Science Centre, Adelaide or such other place as the Coroner directs;
− that an appropriately qualified medical practitioner perform the procedure;
− that any spermatozoa or tissue removed from the deceased be stored at an appropriate locator at the direction of the Coroner;
− that any spermatozoa or tissue removed not be used for any purpose at all without an order of this Court; − that the Coroner take steps to appropriately store any removed spermatozoa or tissue.
My reasons for making these orders follow.
Important issues arise for consideration regarding the jurisdiction of this Court. Applications like this, and applications as to the use to be made of the spermatozoa removed from a deceased or nearly deceased person’s body, are charged with ethical, legal and other issues, and have been the subject of substantial commentary. This would appear to be the first application of its kind in this State. However courts across Australia have been called on to consider similar issues to those the subject of these reasons, with differing results.In discussing inherent jurisdiction Gray J comments that -
The Supreme Courts of several of the Australian States have addressed the jurisdiction of the Court seeking access by a widow to the body of a deceased person in order to obtain a semen sample so that an attempt could be made to conceive a child. In the majority of cases orders have been made.
In MAW v Western Sydney Area Health Service, O’Keefe J of the New South Wales Supreme Court considered the inherent jurisdiction of the Court, and in particular the parens patriae jurisdiction:
... Subject to the Commonwealth Constitution, the Supreme Court is a court of unlimited jurisdiction and as such has an inherent jurisdiction which is sufficiently wide to meet the requirements of the administration of justice. Such a jurisdiction includes a parens patriae jurisdiction: Secretary Department of Health and Community Services v B (Marion's case) [1992] HCA 15; (1992) 175 CLR 218; see also Halsbury’s Laws of England, 4th ed, par 901.
... The parens patriae jurisdiction of the Court is essentially protective in nature (Marion’s case (at 280)) and although broad, is to be exercised cautiously: J v C [1969] UKHL 4; [1970] AC 668 at 695; Marion’s case (at 280). Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others: Re Eve (1987) 31 DLR (4th) 1 at 34. Furthermore, it has limits. O’Keefe J concluded that the parens patriae jurisdiction did not extend to the Court giving a consent to the surgical procedure proposed in the summons:
For the foregoing reasons I am of the opinion that within its limits as presently defined the parens patriae jurisdiction of the Court does not extend to authorising a non-therapeutic surgical procedure of the kind contemplated by the present application. It is not a procedure that is necessary to preserve the life of the patient. It is not a procedure which will safeguard, secure or promote, or prevent the deterioration in, the physical or mental health of the patient. It is not a procedure which will promote the well-being of the patient. In these circumstances it could only be authorised by the Court under its parens patriae jurisdiction if yet another special category or case is recognised in respect of the surgical procedure in question in the present case.
In Queensland, two members of the Supreme Court have declined to make orders on the basis of a want of jurisdiction. In Re Gray, Chesterman J refused Mrs Gray’s application to access the body of her deceased husband in order to obtain a semen sample so that she could attempt to conceive a child. Much like the application before me, the application before Chesterman J sought only the removal and storage of the semen, with any order as to its use to be the subject of further application. The application was made in circumstances attended with some urgency.
Mrs Gray’s husband died in his sleep. This was a sudden occurrence. The couple had one child and intended to have another in the near future. The deceased died intestate and his wife, it was considered, would almost certainly be entitled to a grant of administration over his estate. The deceased’s father gave his consent by affidavit for the removal of the testicular sample for the purposes of freezing and subsequent insemination. The deceased had given his consent for the removal of organs – recorded on his drivers licence. The Court was informed that the deceased and Mrs Gray had never discussed the possibility of her conceiving by semen taken after death.
Mrs Gray contended that the Court had the power to make the order either pursuant to section 8 of the Supreme Court Act 1991 (Qld), or the inherent jurisdiction of the Court – specifically of the type described as the parens patriae jurisdiction. On the first of these submissions, his Honour concluded:
The applicant submitted that the court had power to make the order by reason of s 8 of the Supreme Court Act 1991 (Qld) and/or its inherent jurisdiction of the type described as parens patriae. Section 8 provides that the court has all jurisdiction that is necessary for the administration of justice in Queensland and, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise. I apprehend that the section does not confer power on the judges of the court to do whatever accords with their own, perhaps idiosyncratic, views of justice. The jurisdiction is to afford justice to litigants according to law, that is, established legal principle. The difficulty in the present case is identifying any principle which would justify making the order. The application is itself an implicit acceptance that neither the widow nor next of kin has a right to interfere with the body. Nothing I have found suggests that the court can create or regulate such a power.
His Honour further considered that the parens patriae jurisdiction did not remedy the deficiency and determined that it was impossible to invoke the parens patriae jurisdiction of the Court “in the case of a body from which life has departed”.
Drawing on settled authority, his Honour considered that there was no right to interfere with the body:
It appears that the underlying principles of law are that those entitled to possession of a body have no right other than the mere right of possession for the purpose of ensuring prompt and decent disposal. The prohibition on interfering with a body sanctioned by the possibility of criminal prosecution indicates that to remove part of the body for whatever reason or motive is unlawful. ...
Chesterman J concluded that a deceased’s personal representative, or where there is none, the parents or spouse, has “a right to possession of the body only for the purposes of ensuring prompt and decent disposal”.
His Honour considered that a corollary of this is to be found in the duty not to interfere with or violate the body. Ultimately, Chesterman J considered that the Court did not have any power to make the orders sought but that if it did “the power should not be exercised in the manner sought by [Mrs Gray]”.
Accordingly, Chesterman J refused the application. Some three years later in the Supreme Court of Queensland, in the case of Baker v State of Queensland, Muir J adopted a similar approach to that of Chesterman J. In In the Matter of Denman,Atkinson J in the Supreme Court of Queensland considered an application for removal of spermatozoa of the applicant’s deceased husband. Atkinson J set out the authorities which had both granted and refused such an application, but noted that there was “no authority binding on [her] requiring [her] to accede to or refuse the application.”
Her Honour observed that the question to be considered was similar to that to be decided on an interlocutory injunction: is there a serious question to be tried and, if so, what does the balance of convenience require should be done? Her Honour approached it on that basis.
Atkinson J concluded that, there being no express statutory prohibition on the granting of the application, there was a serious question to be tried as to whether or not spermatozoa can or should be removed from a deceased person and used for the purpose of posthumous reproduction. Referring to the Queensland decisions of Gray and Baker v State of Queensland, her Honour observed:
Both of the judges who decided the cases I have referred to in Queensland referred to what they regarded as strong public policy arguments against such a course. Those arguments are valid, but there are also valid public policy arguments in the other direction.It is certainly the case that any child born, if that were to happen as a result of successful posthumous reproduction, would be born without a father, but children have been born without fathers for a very long time. After impregnation, a father may leave the mother permanently or he may die before the birth of the child. If the father dies before the birth of the child, that child has no father when it is born and yet, from the reading I have been able to do before hearing this case, there does not appear to be any research which suggests that the outcomes for such a child are any worse.No doubt it is preferable for a child to have not one but two parents, both of whom fulfil their parental responsibilities, but many children do not have that, and there are many children who do extremely well in one parent families. It cannot be thought that because the child will only have one living parent that will necessarily not be in its best interests, particularly when the alternative is for the child not to exist at all.There is room for much debate as to the public policy issues involved in such a case and it may be that the law needs to develop to keep up with scientific advances and the opportunities that those scientific advances have given for children who might not otherwise have been able to be conceived to be born.
Atkinson J concluded that the Court has the inherent jurisdiction to allow behaviour which is not unlawful. Her Honour considered that where there is no express statutory prohibition, the harvesting of the deceased’s spermatozoa ought to be permitted in the absence of any suggestion of harm to others. Atkinson J made the following observations about the jurisdiction of the Supreme Court:
The Supreme Court, as McPherson J observed in Boyd v. Halstead, ex parte Halstead [1985] 2 QdR 249 at.255, is the “heir to the jurisdiction of the common law courts at Westminster” and “has in its favour the presumption that nothing is outside its jurisdiction unless expressed to be so intended”.
As to the balance of convenience, Atkinson J concluded that that balance clearly required that the spermatozoa be harvested so that its use could be determined. If it was not harvested then there was no relief that could be sought by the applicant. Atkinson J in Re Floyd adopted the same approach.
In S v Minister for Health (WA), Simmonds J made an order on the ex parte application of a widow for removal and storage of spermatozoa from the body of a man who had recently died. His Honour followed an earlier Western Australian decision of Sanderson M who had made an order in similar circumstances. Sanderson M had founded his jurisdiction on a rule of court which authorised the taking of samples of property. The tissue was considered to be within the definition of property. Simmonds J took a similar approach to jurisdiction.
In Fields v Attorney-General of Victoria, an application was brought in the Victorian Supreme Court by the parents of the deceased for an order from the Court for the removal of spermatozoa and associated tissue from their son who died as a result of a car accident. The deceased was aged 23 years. The deceased’s wife was also involved in the accident and, at the time of the application, was in intensive care and was not in a position to make the application herself. Prior to the accident the couple had been attending a fertility treatment program. Again, the matter was urgent. Coldrey J referred to an order that he had made in a previous case and to the order made by Gillard J in AB v Attorney-General of Victoria and said that he therefore assumed “that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out”. Coldrey J ordered that the spermatozoa be removed and stored. Although his Honour alluded to possible legal impediments to the ultimate fertilisation of the deceased’s wife with any spermatozoa or tissue removed, he described that as “an issue for another day”.
In Y v Austin Health, the plaintiff, Ms Y, brought an application seeking, in part, an order that permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of her husband and that such spermatozoa and tissue be stored in accordance with the Infertility Treatment Act 1995 (Vic). Further, Ms Y sought an order that the spermatozoa and associated issue so removed and stored not be used for any purpose without an order of that Court.
Ms Y’s husband had collapsed unexpectedly and his consciousness became impaired, him being only intermittently aware and interactive. There was real doubt about his competency. He was not aware of the application and had not consented to any of the orders sought. He was registered as an organ donor. The couple had always intended to have children and at the time that the applicant’s husband collapsed, they had been attempting to achieve pregnancy for about 18 months.
Habersberger J considered in some detail the relevant Victorian legislation, however he observed that he was satisfied that the Court had the inherent jurisdiction to make the orders sought, at least on the basis of treating the application as akin to an interlocutory injunction and considering whether it raised a serious question to be tried.
