Posthumous sperm transfer out of jurisdiction

With thanks to Phil Gleeson for noting  the recent decision GLS v Russell-Weisz & Ors [2018] WASC 79, another decision dealing with property in gametes extracted post-humously and the right to direct the transfer of those gametes to another jurisdiction – from Western Australia to the Australian Capital Territory.  The plaintiff (de facto partner of the deceased) was unable to use the sperm in order to conceive a child in Western Australia. However, there is no equivalent prohibition upon the posthumous use of gametes in the Australian Capital Territory (ACT), and a clinic in that jurisdiction is prepared to use the sperm in IVF procedures conducted in the ACT in an endeavour to impregnate the plaintiff (at [2]).

The issues and the decision of the court are summarised at [5] – [6]:

The plaintiff has commenced proceedings seeking declaratory relief to give effect to the following propositions:

1. she has the right to direct the clinic storing the sperm extracted from Gary’s body to transfer that sperm from Western Australia to the ACT;
2. on the proper construction of the Directions, the approval of the RTC (Reproductive Technology Council of Western Australia) is not required to export the sperm from Western Australia;
3. if, on their proper construction, the Directions do require the approval of the RTC before the sperm may be exported from Western Australia, the Directions are, to that extent, invalid or should be read down so that they do not require the approval of the RTC.

6 For the reasons which follow I have concluded that the plaintiff does have the right to direct the clinic storing the sperm extracted from Gary’s body to transfer that sperm from Western Australia to the ACT. I have also concluded that the Directions, on their proper construction, do not require the approval of the RTC before the sperm may be exported. It follows that it is neither necessary nor appropriate to consider whether, if the Directions were to be otherwise construed, they are invalid or should be read down.

The decision includes a discussion of property rights consistent with decisions in other  jurisdictions – see [115] – [125].

 

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