Australian Property Law and Biological Material

Advancements in modern technologies in the field of assisted reproductive technology (ART) have opened up the world to a vast array of possibilities. Scientists have developed the ability to retrieve and preserve individual gametes and embryos by way of cryopreservation, a technique that involves preserving biological materials at very low temperatures outside the body for years. . This field of in vitro fertilization (IVF), worth $2 billion annually in the United States, has forced us to think about human tissue in ways never before thought possible.

These advancements have meant that it is now possible for children to be conceived after the death of one of their genetic parents. The first reported case of posthumous sperm retrieval (PSR) was in 1980 and between then and 1995 there were 82 requests for PSR in the US alone. While PSR has enabled males (predominately), previously deemed sterile once again fertile, it has posed a number of issues that have been described as the “most challenging, difficult and sensitive that are likely to be encountered in the field of medicine”.

Jocelyn Edwards; Re the estate of the late Mark Edwards represented the first time in NSW that a woman was allowed to harvest the sperm of her deceased partner. However, it highlighted a number of issues concerning the control of processes involving gametes, the right to use and control them and whether gametes can actually be considered as property, as well as the obvious moral and ethical issues with completing such a radical procedure. Furthermore, there are those that concern the rights of the child, as well as the danger of commercialisation.

This essay will explore each of the policy issues raised in Re Edwards and the concerns for the broader community spectrum as a whole. Technology, indeterminacy and the need for law reform In the Concept of Law, H. L. A. Hart dictates his theories of legal adjudication and hypothesises his resolution to doctrines of legal indeterminacy and uncertainty. Hart acknowledged that there are gaps in the law and that the existence of a valid legal rule or principle cannot always be applied to determine the resolution of all legal disputes.

For Hart, the law is ‘open textured,’ in that it fails to fully encapsulate all examples or precedents and because of this, judges possess discretion in their adjudication. In this sense, judges adopt elements of the legislature; where there are gaps in existing rules and principles, they simply create new laws. The previously addressed influx of new technology concerning assisted PSR has created these ‘gaps’ in the law where the legal system had not fully addressed the realm of possibilities the new technology posed. As Moses highlights, “once a technology becomes more widely accepted and used, any legal problems associated with that technology will become more urgent.

” Although there have been efforts to address the gap, through both State and Federal legislation, the increased exposure to ART and use of IVF resulted in a level of indeterminacy in Re Edwards, where the NSW legislation failed to clearly articulate the definition of ‘supply’. This lack of clarification created a gap that arguably allowed Hulme J to interpret the term using his own construction; that the action of handing the sperm to Jocelyn Edwards constituted a ‘release’ of the sample and not in the prohibited sense of ‘supplying’.

This construction could be viewed as a violation of the doctrine of parliamentary supremacy, where Hulme J has simply formed an interpretation to suit his own agenda. Nevertheless, it highlighted the inherent gap between PSR technology and the law, one which must be remedied either through further judicial interpretation or the introduction of further clarifying legislation. Consent There are two major issues of consent in Re Edwards that give rise to policy concerns. By Hulme J’s own admission, there was no written consent by Mr.

Edwards to the removal of human tissue from his body after his death, nor the consent of a designated officer. This lack of consent ultimately led to a violation of s 36(1) of the Human Tissue Act and represents the first issue; that there was no authority by which the hospital could use to justify the removal of Mr Edwards sperm post-mortem. The second major concern is that this lack of written consent extends to the releasing of the sperm to Ms. Edwards to enable her pursuit of IVF treatment. In both cases, explicit consent is a requirement, although as previously discussed, Hulme J formed an interpretation to allow Ms.

Edwards possession of the sperm without the application of explicit consent. Nevertheless, regardless of the finding, Re Edwards raises the issue of whether or not it is ethically justifiable to carry out sperm retrieval after death with the absence of the expressly written consent of the male. This is highlighted in the case of R v Human Fertilisation and Embryology Authority, ex parte Blood, where Mrs.

Blood was refused permission to be inseminated due to a lack of written consent. Commentators have asserted that “explicit prior consent is ethically required for postmortem sperm retrieval, storage and use”, which is consistent with the position adopted by the British Medical Association’s Ethics Committee and evidenced by Senator Roy Goodman’s introduction of a bill to the New York legislature prohibiting the use of PSR without prior written consent.

However, as Orr and Siegler explain: It is rare for a healthy young man to anticipate life-threatening illness, and even more rare for him to contemplate or discuss whether he would want his sperm to be collected after death so that his widow could bear his child. By this theory, the legal threshold of explicit written consent is unreasonable because it is “extremely improbable the donor would have envisaged this scenario and had his wishes appropriately recorded in a document.

” As Orr and Siegler concede, it is preferable to obtain a statement of a patient’s current wishes followed by an advance written directive, before progressing further down the hierarchy of certainty to the notion of ‘implied consent’. However, in the absence of this, medical and legal professionals alike cannot avoid making these decisions and must make the best judgment with the current information available and any lack of expressly written consent should also be able to be implied from their actions.

As such, the policy consideration of whether to lower the threshold required to constitute consent will either render the restrictions tighter, in the case of explicit consent, or looser, in the case of implied consent, ultimately having the effect of altering the criteria required to prove proprietary property rights to possession of sperm. The best interests of the child Although not specifically a principle of property law, the rights of the child are of highest importance in the case of PSR and any violation of them may force us to consider appropriate alterations to the relevant property policy, to ensure their congruence.

On 7 November 2007, the then Minister for Health expressed his guiding principles that were of paramount importance in the formulation of the ART Act. One of these principles was that the recognition of the best interests of any child born via ART to be of utmost significance and has been adopted in all cases concerning PSR. In YZ v Infertility Treatment Authority, Morris J recognised the guiding principles as set out in the Infertility Treatment Act 1995 (Vic), which were accepted by Hulme J in Re Edwards.

In MAW v Western Sydney Area Health Service, although O’Keefe J deemed the calculation of the best interests of the child to be a “difficult matter”, he nevertheless acknowledged its significance. While the importance of the child’s welfare is clearly established much of the criticism and objections to PSR relate to situations where the child would be raised by the one surviving parent, stemming from the notion that “bringing the child into a single parent household would be harmful to the child. ” In this sense, we need to ask, what constitutes harm?

Feinberg constitutes harm to a child to only exist if they are caused to be worse off than they otherwise would have been. In the case of PSR, we can dismiss this argument because other than in the unlikely event of a debilitating injury/illness, the child’s life would be better off than in the event of nonexistence. As such, the burden suffered by the child is represented by that of having lost one genetic parent. As Bahadur highlights “the psychological impact on the child should be minimal and probably within the range of experiences seen in some parallel studies on, for example, single parent families.

” Conversely, Chesterman J in Re Gray could not see how the “interests of such a child will be enhanced by inevitable fatherlessness” and may indeed result in causing the child embarrassment in regards to its conception and lead to serious emotional problems The Human Embryology and Fertilisation Authority of Great Britain advised that some surgeons decline to provide ART services to single women based on studies showing children of single parents do not do as well as children with both parents.

However, what is agreed upon is the importance of support networks that are in place after the husband dies, illustrated by the support of the deceased’s family. The threshold for a violation of the rights of the child to a minimum opportunity for development and standard of living must be severe; not minor. Thus, intervention and prevention of PSR should not be exercised unless it is concluded that the child will be at a serious disadvantage should it be brought into this world.

Commercialisation and Equity Although not discussed at length in Re Edwards, the prevention of commercialisation of human reproduction remains one of the guiding principles of the ART Act. In the Australian Law Reform Commission and the Australian Health Ethics Committee’s review: Protection of Human Genetic Information, although the benefits of treating sperm as property outweighed the drawbacks, the committee elected not to endorse conferring of full property rights on genetic material. Had the committee recommended the adoption and parliament had enacted legislation to that effect, this would have had significant implications on the commercialisation of sperm samples.

Although as Resnik portrays, the basis for the commodification of human reproductive materials and the buying and selling of gametes and genes is morally acceptable, the practise of trading gametes is “dangerously close to selling persons, since gametes can become persons. ” The counter argument is one of autonomy, that “individuals should be allowed to use their own bodies and body parts as they please, so long as they do not harm others. ” However, the original ‘no property in the human body’ rule originated in the seventeenth century, a time when body parts and tissue possessed insignificant medical and commercial value.

Nowadays, the potential for abuse of this market remains substantially high and renders commodification and the ultimate conferring of full property rights questionable, a process that both the legislature and the judiciary would be hesitant about endorsing. Furthermore, should there be any gross negligence, loss, theft of sperm samples or any other action which would normally result in a tortious claim, if property rights are not conferred on sperm, one cannot seek damages sperm samples are not regarded as property, as was discussed in Yearworth.

This has the added effect of ensuring that an appropriate level of care is taken when medical practitioners are either in possession of the sperm samples or in the process of harvesting them. Conclusion Although Re Edwards represented a landmark case in the step towards legitimising PSR, it highlighted a number of shortcomings of the present state of the law and exposed those which the law failed to adequately encapsulate.

It exposed inherent gaps in the issues of consent, of which presently provide too much scope for interpretation and do not satisfactorily represent the best interests of the child, the by-product of PSR. Furthermore, although the law does provide appropriate safeguards against commercialisation, through a failure to recognise full property rights, any step toward conferring additional rights should be wary of this and is an issue for subsequent policy considerations. ? BIBLIOGRAPHY A Articles/Books/Reports Bahadur, G., ‘Death and Conception’ (2002) 17(10) Human Reproduction, 2769.

Blackstone, William, ‘Commentaries on the Laws of England’ (University of Chicago Press, 1979) Boulier, William, ‘Sperm, spleens, and other valuables: The need to recognize property rights in human body parts’ (1994-1995) 23 Hofstra Law Review 693. Childress, J. F. ‘Who should decide: paternalism in health care’ (New York: Oxford University Press, 1982) Dyer, Clare, ‘Widow’s case raises issues of informed consent’ (1996) 313 British Medical Journal 1349.

Faunce, Thomas, ‘Who owns a dead man’s sperm’ (2012) 19 Journal of Law and Medicine 479 Feinberg, J., ‘Harm to Others’ (Oxford University Press, New York, USA,1984) Golombok, S. ‘New families, old values: considerations regarding the welfare of the child’ (1998) 13 Human Reproduction 2342 Goold, Imogen, ‘Sounds Suspiciously Like Property Treatment Does Human Tissue Fit within the Common Law Concept of Property’ (2005) 7 University of Technology Sydney Law Review 62 Hammond, Celia, ‘Property Rights in Human Corpses and Human Tissue: The Position in Western Australia’ (2002) 4 University of Notre Dame Australia Law Review 97 Hart, H.

L. A. , ‘The Concept of Law’ (Oxford University Press, 1961, 1 ed. ). Horner, J. S. ‘Reply from chairman of BMA’s Medical Ethics Committee’ (1996) 313 British Medical Journal 1477 Jansen, Robert P. S. , ‘Sperm and ova as property’ (1985) 11 Journal of Medical Ethics 123 Kindregan , Charles P. Jr., ‘Posthumous Reproduction’ (2005) 39 Family Law Quarterly 579 Leiboff, Marett ‘Post-Morterm Sperm Harvesting, Conception and the Law Rationality or Religiosity’ (2006) 6 Queensland University of Technology Law and Justice Journal 193 Mbaka, Diana, ‘Reproductive technology and litigation the need for heavy reliance on judicial discretion’ (2011) 19 (5-6) Australian Health Law Bulletin 85 Nicol, Dianne, ‘Property in Human Tissue and the Right of Commercialisation’ (2004) 30 Monash University Law Review 139 Nolan, K. C.

M. Rothman and J. W. Ross, ‘Live sperm, dead bodies’ (1990) 20 Hastings Center Report 33 Nwabueze, Remigius N. ‘Death of the ‘No-Property’ Rule for Sperm Samples’ (2010) 21(3) King’s Law Journal 561 O’Donnell, Kath, ‘Legal Conceptions Regulating Gametes and Gamete Donation’ (2000) 8 Health Care Analysis, 137 Ohl, Dana A,. John Park, Carl Cohen, Karen Goodman and Alan C. Menge ‘Procreation after death or mental incompetence: medical advance or technology gone awry? ’ (1996) 66(6) Fertility and Sterility 889 Orr, R.

D.and M Siegler, ‘Is posthumous semen retrieval ethically permissible’ (2002) 28 J Med Ethics, 299 Pennings, Guido ‘What are the ownership rights for gametes and embryos’ (2000) 15 (5) Human Reproduction, 979 Pennings, Guido, ‘Measuring the welfare of the child: in search of the appropriate evaluation principle’ (1999) 14 Human Reproduction, 1146 Resnik, David B, ‘The commodification of human reproductive materials’ (1998) 24 Journal of Medical Ethics 388 Steinbock Bonnie ‘Sperm as Property’ (1994-1995) 6 Stanford Law and Policy Review 57 Strong, C.

and J. S. Schinfeld, ‘The single woman and artificial insemination by donor’ (1984) 29 Journal of Reproductive Medicine 293 Strong, Gingrich and Kuttehl, ‘Ethics of postmortem sperm retrieval after death or persistent vegetative state’ (2000) 16(4) Human Reproduction 739 Sutton, Stacey, ‘The Real Sexual Revolution; Posthumously Conceived Children’ (1999) 73(3) St.

John’s Law Review 12 Taylor, Richard, ‘Human Property Threat or Saviour’ (2002) Murdoch University Electronic Journal of Law 9(4) 1 Wall, Jesse, ‘The legal status of body parts: A framework; (2011) 31(4) Oxford Journal of Legal Studies 783 Winckel, Anne, ‘Dead Man’s Sperm Case’ (1998) 23 Alternative Law Journal 288 B Cases Haynes’s Case (1614) 12 Co. Rep 113 Hecht v. Superior Court (1993) 20 Cal.

Rptr. 2d 275 Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231 R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687 Re Gray [2001] 2 Qd R 35 YZ v Infertility Treatment Authority [2005] VCAT 2655 C Legislation Assisted Reproductive Technology Act 2007 (Cth).

D Other Lyria Bennett Moses, Law and technology theory: Exploring and rationalizing the regulation of technology, from the double helix to the world wide web – Distinguishing law and behavioral change (2006) at 27 March 2012. Australian Law Reform Commission and the Australian Health Ethics Committee ‘Protection of Human Genetic Information’ (2002) ALRC, Sydney.