The judgment follows Re H, AE (2012) 113 SASR 560 and Re H, AE (No 2)  SASC 177. In the latter the applicant had sought a declaration of entitlement to possession of sperm extracted - pursuant to an order of the Court - shortly after her late husband's death. It was apparent that the applicant intended to use the sperm to procure pregnancy by in vitro fertilisation. The court was asked to consider whether the applicant was entitled to possession of the sperm, noting for example Jocelyn Edwards; Re the Estate of the Late Mark Edwards  NSWSC 478, Bazley v Wesley Monash IVF Pty Ltd  2 Qd R 207, Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996).and of course Doodeward v Spence  HCA 45; (1908) 6 CLR 406.
The Court held that under its inherent jurisdiction it retained control of the use of the sperm. In response to the applicant's prima facie case for an order that she have possession of the deceased’s sperm for use in a manner approved by the Court a concern raised by the South Australian Attorney-General needed to be addressed. The A-G did not appear as a contradictor and did not consent to or oppose the relief sought.
The A-G's intervention, under section 9(2)(a) of the Crown Proceedings Act 1992 (SA), involved submissions regarding the assisted fertility scheme in South Australia, governed by the Assisted Reproductive Treatment Act 1988 (SA), which restricts access to in vitro fertilisation. The A-G contended that the legislative restrictions on obtaining in vitro fertilisation are relevant when considering whether to exercise the Court's discretion to grant declaratory relief, arguing that no registered person operating in South Australia would be able to lawfully provide in vitro fertilisation treatment using the deceased’s sperm to the applicant.
Gray J held that
I have reached the conclusion that the applicant and the deceased had decided to start a family and that but for the death of the deceased, their attempts to do so would have continued. I consider that the applicant, as a mother, would provide a loving, caring and stable environment for her child. I am satisfied that she is in a position as a mother to meet the emotional needs of her child. I am satisfied that the applicant is in a position to meet the material needs of raising a child. I am satisfied that there is wider family support for the applicant in the event of her motherhood. In reaching these conclusions, I have had regard to the evidence referred to earlier in these reasons.
The applicant has adopted a responsible attitude to the within application. She is a determined and courageous woman.
For the reasons that follow, I consider that the Court, in its inherent jurisdiction, retains control of the use of the sperm. However, I consider that the applicant has made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the Court.
In reaching my conclusions, I have considered a number of articles and other papers addressing what may be described as the ethical and moral issues arising from this application. These articles and papers have emphasised the interests of the child to be conceived. I have also considered relevant legal authorities, both in Australia and other jurisdictions. There are precedents for the release of sperm in comparable circumstances to those arising in the within proceedings. It is to be noted that the applicant sought an order that she was entitled to the sperm as though it was a species of property over which she could claim ownership. The issue of whether the deceased’s sperm which has been extracted and preserved is subject to property rights requires some consideration.In the current judgment Gray J granted the applicant use of the spermatozoa under the control and supervision of the Genea Clinic in the Australian Capital Territory, i.e. a jurisdiction with a different assisted fertility regime to that of South Australia. The expectation is that Genea will use "a treatment procedure or procedures … to produce an embryo or embryos to be implanted in the applicant".
The Court held that the -
Conclusion expressed in Re H, AE (No 2)  SASC 177 that the deceased did intend to have a family with the applicant and that that intention was made known to others and was evidenced in writing. It remains a question for those providing treatment in the Australian Capital Territory to reach their own conclusion on this topic.That is because the ACT relies on the 2007 National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, an accreditation framework rather than a statute.
The Guidelines state that -
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 to achieve pregnancy 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. ….
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.A perspective is provided in 'Post-mortem sperm retrieval in Australia' by Benjamin Kroon, Frederick Kroon, Saul Holt, Brittany Wong and Anusch Yazdani in (2012) 52(5) Australian and New Zealand Journal of Obstetrics and Gynaecology 487