Supreme Court New South Wales Medium Neutral Citation: Noone v Genea Limited [2020] NSWSC 1860 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 18 December 2020 Jurisdiction: Common Law Before: Beech-Jones J Decision: THE COURT DECLARES that: 1. Subject to declarations 2 and 3, the plaintiff is entitled to possession of the reproductive tissue sample collected from her late husband, Paul Lum, on or about 20 February 2020 (the "tissue sample") and currently stored by the defendant, Genea Limited ("Genea"). 2. Upon request by the plaintiff, Genea is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory; and 3. Upon receipt of the sample from Genea, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory. THE COURT ORDERS that: 1. The name of the defendant be amended to "Genea Limited"; 2. There be liberty to the parties and the Attorney-General of NSW to apply on short notice. Catchwords: Human Tissue – removal of sperm from deceased person for Invitro Fertilisation – storage of gametes – whether plaintiff entitled to possession of stored sperm for use in Invitro Fertilisation in ACT. Legislation Cited: Assisted Reproductive Technologies Act 2007 Guardianship Act 1987 Human Tissue Act 1983 Cases Cited: Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45 Gonzales v Coroner's Court of New South Wales [2018] NSWSC 153 In the matter of an Application by Vernon [2020] NSWSC 608 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Noone v Genea [2020] NSWSC 118 Re Adams [2020] NSWSC 1670 Re Cresswell [2018] QSC 142 Re Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478 Category: Consequential orders (other than Costs) Parties: Catherine Noone (Plaintiff) Genea Limited (Defendant) Attorney-General (as Amicus) Representation: Counsel: E James (Plaintiff) J Davidson (A-G) Solicitors: Aden Lawyers Pty Ltd (Plaintiff) Crown Solicitor's Office (A-G) File Number(s): 2020/55312 Judgment 1. By a notice of motion filed 24 September 2020, the plaintiff, Catherine Bridget Noone, sought a declaration in the following terms: "1. A declaration that Ms Catherine Noone is entitled to use the reproductive tissue sample as collected as is necessary and required for the purpose of IVF treatment and assisted reproductive technology." 1. The reference to the "reproductive tissue sample" in the proposed declaration is to the reproductive tissue samples taken from the body of her late husband, Mr Paul Lum, in the circumstances described below. 2. Upon the filing of the notice of motion, I directed that it be served upon the Attorney‑General for the State of New South Wales as the motion potentially raised a number of issues concerning the Human Tissue Act 1983 and the Assisted Reproductive Technologies Act 2007 (the "ART Act"). The Attorney‑General applied to become a party to the proceedings or to be heard amicus curiae. At the hearing of the motion, I heard the Attorney-General as amicus curiae and received detailed submissions from his counsel, Ms Davidson. 3. The Attorney-General opposed the making of the above declaration but did not oppose relief designed to facilitate the transport of the sample to the Australian Capital Territory ("ACT") to enable the plaintiff to access IVF treatment there if the law of the ACT so permits. As it turned out, the plaintiff was seeking to take that course. Upon being satisfied that was appropriate, I made the following orders and declarations: THE COURT ORDERS that: 1. The name of the defendant be amended to "Genea Limited"; 2. There be liberty to the parties and the Attorney-General of NSW to apply on short notice. THE COURT DECLARES that: 1. Subject to declarations 2 and 3, the plaintiff is entitled to possession of the reproductive tissue sample collected from her late husband, Paul Lum, on or about 20 February 2020 (the "tissue sample") and currently stored by the defendant, Genea Limited ("Genea"). 2. Upon request by the plaintiff, Genea is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory; and 3. Upon receipt of the sample from Genea, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory. 1. When making these orders I indicated that reasons would be provided later. This judgment constitutes those reasons. Noone (No 1) 1. Ms Noone and Mr Lum commenced a relationship in 2006. They started living together in 2011 and were married in October 2017. In 2018 they discussed having a family but after a lack of success in conceiving they decided to use in vitro fertilisation ("IVF"). In August 2019, they commenced that process with an IVF facility known as Genea (and operated by Genea Ltd). Upon commencing with Genea they signed various consent forms which are described below. 2. Tragically during the morning of 19 February 2020 Mr Lum died suddenly from a heart attack. In those awful circumstances, Ms Noone was able to contact solicitors. They approached me sitting as Duty Judge to seek orders designed to advance Ms Noone's IVF treatment by removing the testes and spermatozoa from the body of the late Mr Lum. 3. The application was made with great urgency because the evidence revealed that the removal process could only be undertaken within 24 to 36 hours after death. Accordingly, the application was heard and determined at around 10.00pm on 19 February 2020. Ms Noone was represented by counsel. Genea was not represented. It had indicated that it would not agree to arrange the removal and storage of Mr Lum's sperm without an appropriate Court order. 4. At the conclusion of the hearing late on the evening of 19 February 2020, I made the following orders (Noone v Genea [2020] NSWSC 118 at [16]; "Noone (No 1)"): "THE COURT DECLARES that: (1) Ms Catherine Bridget Noone is, for the purposes of the Human Tissue Act 1983, the Senior Available Next of Kin of the late Mr Paul Lum. (2) Ms Catherine Bridget Noone, has by written instrument dated 19 February 2020 (being Exhibit A in the proceedings), validly authorised under s 24(3) of the Human Tissue Act 1983, the extraction of all and any reproductive tissue from the body of the late Mr Paul Lum, as is necessary for the purpose of Assisted Reproductive Treatment, such purpose being a "therapeutic or medical purpose" within the meaning of s 24(3). THE COURT ORDERS that: (3) Any such reproductive tissue extracted from the body of the late Mr Paul Lum is to be released to Ms Catherine Bridget Noone, but only upon her causing a suitably equipped transportation company or courier to collect it on her behalf for transport to an authorised facility. (4) Ms Catherine Bridget Noone is authorised to arrange for the storage of the removed reproductive tissue at a suitable storage facility until any order granting the use of that tissue is made, should such order be necessary." 1. Given the issues that have arisen on the present notice of motion, it is appropriate to note the reasoning that supports the making of these orders. In relation to orders 1 and 2, s 24(3) of the Human Tissue Act provided an exception to the general prohibition found in s 36(1) on the removal of the tissue of a body of a person that is alive or dead as follows: "(3) If the body of a deceased person is at a place other than a hospital, a senior available next of kin of the person may, by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue from the deceased person's body for the purpose of its transplantation to the body of a living person, or its use for other therapeutic purposes or for medical purposes or scientific purposes." (emphasis added) 1. This provision was engaged as Ms Noone was Mr Lum's senior next of kin and at the time of the application his body was not at a hospital, but located at a funeral parlour. Further, having regard to the observation of Fagan J in Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 at [63] ("Chapman") that the expression, "medical purposes or scientific purposes" is wide enough to include use in assisted reproductive procedures, I found that Ms Noone had authority to give consent to the removal of reproductive tissue from the body of Mr Lum. 2. The exception to s 36 in s 24(3), is itself qualified by s 24(4) of the Human Tissue Act which provides that: (4) A senior available next of kin must not grant an authority under subsection (3) if it appears to the senior available next of kin, after making such inquiries as are reasonable in the circumstances, that— (a) the deceased person had, during the person's lifetime, expressed an objection to the removal of tissue from the person's body after the person's death unless, based on the most recent views expressed by the deceased person, it appears that the person no longer had an objection to the removal of tissue from the person's body, or (b) another next of kin of the same or higher order of the classes in paragraph (a) or (b) of the definition of senior available next of kin in section 4 (1) objects to the removal of tissue from the person's body. 1. In relation to this provision, I found as follows (Noone (No 1) at [11] to [12]): "In relation to s 24(4)(a), not only was there no objection by the late Mr Lum to the removal of spermatozoa, the very significant number of consents that were signed by Mr Lum while he was undertaking the IVF process with Genea confirms beyond any doubt, that he would certainly have agreed to the removal of tissue from his body for that purpose. In particular, one of the consents that he signed concerned the use of embryos if he should die or become unavailable to provide consent. It seems to me inherently unlikely that having agreed to that, Mr Lum would raise any objection to the removal of his testes and spermatozoa after his death for the purposes of fertilising an embryo. Accordingly, I am satisfied that a valid instrument in writing for the purposes of s 24(3) for the stated purpose has been issued and, subject to one matter, that is sufficient to address s 36(1)." 1. I then addressed s 25 of the Human Tissue Act in terms that are not necessary to set out. In relation to the relief sought, I stated as follows (Noone (No 1) at [15] to [16]): "There are four substantive orders sought this evening. The first is a declaration that Ms Noone is the 'senior available next of kin' for the purposes of the Human Tissue Act. It follows that declaration will be made. The next is a declaration that she has issued a valid written instrument for the purposes of s 24(3). It follows from what I have said that the declaration will be made. The third order is that the reproductive tissue be extracted and be released to Ms Noone, but only if she causes a suitably equipped transportation company or courier to collect it on her behalf for transfer to an authorised facility. The fourth order authorises the storage of that equipment at a suitable storage facility until any order granting the use of that tissue is made, should such order be necessary. As I understand it those two orders, as well as the declarations, have been requested by Genea before they will provide a medical expert to undertake what is required. There is, in this case, significant reason to believe that the existing consents that Mr Lum gave may mean that no further intervention by the Court is necessary, however, it is not necessary to decide that at this stage. It suffices to state, that I will make these orders." 1. As explained below, aspects of this reasoning are either inconsistent with parts of Chapman or the Attorney‑General's submissions or both. I will address those matters, but at this point it suffices to state that the Attorney‑General did not submit that any of the orders made on 19 February 2020 should be rescinded. Orders of this Court are valid and enforceable unless and until set aside (New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]). One part of the Attorney‑General's submissions queried whether the effect of orders 3 and 4 assisted Genea in that the phrases "authorised facility" and "suitable storage facility" are not found in the ART Act. [1] However, it is self-evident from Noone (No 1) that those phrases referred to Genea. No doubt Genea acted, and will continue to act, in the good faith belief that those orders refer to it. Any regulatory action against Genea that is inconsistent with that good faith assumption would be an abuse of process. Mr Lum's Consent Form 1. In light of the issues that arose on the hearing of this motion, it is necessary to say something further about the consent forms executed by Ms Noone and Mr Lum. 2. In her affidavit sworn 13 November 2020, Ms Noone deposes to a conversation she had with Mr Lum just prior to completing Genea's consent forms in which they discussed the continuation of IVF treatment if either of them passed away. Ms Noone recounts telling Mr Lum that she "would be ok" with Mr Lum using her "eggs or our embryo and continuing on the journey on your own" if he chose to. The balance of the conversation was as follows: [2] "[Ms Noone]: Would you be ok with me using your sperm or our embryo to have our baby if you did die? [Mr Lum]: Absolutely if that is what you would want then I 100% support that and will tick yes also. [Mr Lum]: Hopefully that will never apply to us." 1. Annexed to Ms Noone's affidavits were two sets of consent forms. One set of consent forms appears to have been completed on 10 January 2020 and are not relevant to these proceedings. [3] The other set of consent forms bear electronic markings indicating they were completed by each of Ms Noone and Mr Lum on the morning of 5 August 2019. [4] 2. The form completed by Mr Lum on 5 August 2019 identifies his involvement as the "Sperm Provider, Intended Parent" and Ms Noone as the "Egg Provider, Gestational Carrier, Intended Parent". [5] The form records that Mr Lum expressly refused to give permission in relation to certain matters such as the use of excess sperm for training purposes or embryos deemed unsuitable for clinical use purposes. [6] In relation to the posthumous use of embryos the form stated: [7] "Posthumous Use of Embryos It is important that we understand and record your instructions in the event that you die or otherwise become unable to vary your consent. Please indicate your instructions to Genea by choosing one option only: I consent to the use of the embryos by the remaining Intended Parent/s if I die or otherwise become unable to vary this consent (please note this option is only available where treatment involves one or more further Intended Parents). Please note that whilst Genea supports your right to choose this option, we do not provide an embryo donation service. 1. The form completed by Ms Noone on the same day also included this clause and it was completed in the same way. [8] However, it also contained the following: [9] "Posthumous Use of Gametes It is important that we understand and record your instructions in the event that you die or otherwise become unable to vary your consent. Please indicate your instructions to Genea by choosing one option only: I consent to the use of my gametes by the remaining Intended Parent/s if I die or otherwise become unable to vary this consent (please note this option is only available where treatment involves one or more further Intended Parents). We recommend you also note your wishes in your will." 1. The absence of such a clause in the form completed by Mr Lum on 5 August 2019 is curious. It does not appear to be explicable on the basis that he refused to provide consent to the posthumous use of his gametes because presumably Genea would want that fact to be expressly recorded. Counsel for Ms Noone advised the Court that, as at August 2019, Genea's form did not expressly seek the consent of the sperm provider to the posthumous use of their gametes. I cannot act on that statement. However, based on the evidence, I draw the inference that Mr Lum was not offered the opportunity to expressly record his consent to the posthumous use of his gametes as opposed to any embryos he fertilised. 2. On 19 February 2020, I concluded that it is "inherently unlikely that having agreed to [the posthumous use of embryos] that Mr Lum would raise any objection to the removal of his testes and spermatozoa after his death for the purposes of fertilising an embryo". This is confirmed by the conversation deposed to by Ms Noone which I accept. However, even though in Noone (No 1) I was able to make a finding referable to s 24(4) of the Human Tissue Act, as I will explain, that is not the same as the written consent required for the posthumous use of gametes by the ART Act. Subsequent Developments 1. After the orders were made on 19 February 2020, a doctor employed by Genea attended a funeral home and removed reproductive tissue from Mr Lum. The doctor subsequently advised that "good sperm samples" had been extracted. The tissue sample continues to be stored by Genea. 2. Understandably, in the weeks and months after Mr Lum's death, Ms Noone underwent a grieving process and consulted with her family and doctors about pursuing a pregnancy using the sample taken from Mr Lum. In late April 2020, Ms Noone's treating specialist wrote to her general practitioner stating that she had consulted with Ms Noone about whether fertilisation could take place in NSW "or may need to be undertaken in the ACT where the law will provide for posthumous of sperm in a situation such as Cathy's". [10] 3. In May 2020, Genea's legal counsel advised Ms Noone that for persons in her position to pursue fertilisation Genea required them to "go through a two‑step process ... and apply to the Court to obtain a second Court Order for the sperm to be used". [11] Ms Noone's solicitor queried with Genea whether a further order was required and pointed to order 4 made on 19 February 2020. Genea's legal counsel responded describing the law in this area as "uncertain" and to the potential difference between Mr Lum consenting to the posthumous use of fertilised embryos as opposed to his gametes. [12] Genea's counsel referred to the "legal, commercial and reputational risks to Genea" that necessitated obtaining a court order. 4. In a letter addressed to the Court dated 28 October 2020, Ms Noone's treating fertility specialist and oncologist noted that, given Ms Noone's age, "her fertility [is] declining rapidly" and that she was close to menopause such that if IVF was not started promptly, she may "forever miss the opportunity to have a child". The treating Doctor request the Court expedite orders "to allow the sperm to be moved to [the] ACT" to allow treatment to start as soon as possible. [13] 5. As noted, the notice of motion was filed on 24 September 2020. There was some delay in serving the Attorney‑General. In the end result, the matter was fixed for hearing on 14 December 2020. During submissions it became apparent that the plaintiff was seeking relief that would enable her to transport the tissue sample to the ACT for IVF treatment there. The only issue concerned the reasoning that might support such declaratory relief and not the relief itself. The ART Act 1. The ART Act regulates the provision of Assisted Reproductive Technology services in NSW. For the purposes of these proceedings its most significant provisions are a series of prohibitions on the activities of so called "ART providers" found within Part 2. Hence, s 18 prohibits an ART provider from "us[ing] a gamete to create an embryo outside the body of a woman except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent". Section 19 prohibits an ART provider from providing "ART treatment to a woman using a gamete" except with the gamete provider's consent in relation to certain matters. Section 21 prohibits the "supply" of a gamete or an embryo by an ART provider to another person "except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent". Section 22 has a similar prohibition on the "export" of a gamete or an embryo by an ART provider. Section 25 prohibits an ART provider storing a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. 2. Section 23 addresses the posthumous use of gametes and embryos. It provides: "Use of gametes or embryos after death of gamete provider An ART provider must not provide ART treatment to a woman using a gamete if the ART provider knows or believes on reasonable grounds that the gamete provider is deceased, unless: the gamete provider has consented to the use of the gamete after his or her death, and the woman receiving the ART treatment has been notified of the death or suspected death of the gamete provider and the date of death (if known), and the woman receiving the ART treatment has given written consent to the provision of the ART treatment using the gamete despite the death or suspected death of the gamete provider. Note. The Human Tissue Act 1983 regulates the removal of tissue (including gametes) from a deceased person." 1. To understand the effect of these provisions on the position of Ms Noone, it is necessary to address the definitions of "ART", "ART provider", "gamete provider" and "consent". Unless otherwise stated these definitions are found within s 4(1) of the ART Act. 2. An "ART provider" is defined as "a person who provides ART services and includes a registered ART provider". Genea is a registered "ART provider". An "ART service" is defined as meaning: "any one or more of the following services, treatments or procedures that is provided for fee or reward or provided in the course of a business (whether or not for profit): (a) an ART treatment, (b) the storage of gametes and embryos for use in ART treatment, (c) the obtaining of a gamete from a gamete provider for use in ART treatment or for research in connection with ART treatment." 1. "ART treatment" is defined as any "medical treatment or procedure that procures or attempts to procure pregnancy in a woman by means other than sexual intercourse, and includes artificial insemination, in‑vitro fertilisation, gamete intrafallopian transfer and any related treatment or procedure that is prescribed by the regulations". 2. A "gamete" is defined as meaning "a human sperm or a human ovum". A "gamete provider" is defined as follows: "the individual from whom the gamete has been obtained and in relation to an embryo, means an individual from whom a gamete used to create the embryo was obtained." (emphasis added) 1. As explained below, the parties debated whether the "individual" referred to in this definition was only the person or body from whom the gametes were removed or included any person entitled to possession of the gamete. Of relevance to this debate is that the phrase "obtain a gamete from a gamete provider" is defined as including "receive a gamete from a gamete provider". In addition, s 4B(1) provides that any reference to a "donated gamete" in the ART Act: "(a) is a reference to a gamete donated by a gamete provider for use by a person other than the gamete provider or the gamete provider's spouse, and (b) includes a reference to a gamete used to create a donated embryo (whether or not the gamete was originally obtained from the gamete provider as a donated gamete and whether or not the embryo was originally created for use as a donated embryo)." 1. The prohibitions noted above provide for an exception whether there is the consent of the "gamete provider". The provision of consent is addressed by ss 16 and 17 which provide: "16. Interpretation In this Division: (a) consent of a gamete provider means the gamete provider's consent given under section 17 in relation to a gamete as modified or revoked in accordance with that section, and (b) a requirement that any matter be consistent with a gamete provider's consent is, if gametes from more than one gamete provider are involved, a requirement that the matter be consistent with each gamete provider's consent. 17 Giving, modifying and revoking consent (1) A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice setting out the gamete provider's wishes in relation to the gamete (the gamete provider's consent). (2) A gamete provider's consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider." 1. The consents given by each of the late Mr Lum and Ms Noone are set out above. Notwithstanding the finding made at [22], it is clear that there is no written consent satisfying s 17 of the ART Act from Mr Lum consenting to the use of his gametes after his death for the purposes of s 23(a) of the ART Act. Consistent with the debate over the meaning of "gamete provider" noted above, the plaintiff contended that was not necessary and a consent from Ms Noone was sufficient. Decisions 1. A number of decisions of this Court have authorised or approved the removal of tissue from a deceased person for reproductive purposes (see for example Re Edwards (2011) 81 NSWLR 198 at 201; [2011] NSWSC 478 describing the orders of Simpson J; "Edwards"; Gonzales v Coroner's Court of New South Wales [2018] NSWSC 153; In the matter of an Application by Vernon [2020] NSWSC 608; "Vernon" and Re Adams [2020] NSWSC 1670). 2. These decisions, and so much of Noone (No 1) that authorised the extraction of semen, are inconsistent with obiter of Fagan J in Chapman. Chapman was a claim for a final declaration that the plaintiff was entitled to possession of sperm that had been extracted from her deceased husband. His Honour ultimately granted relief enabling the plaintiff to arrange for the collection of the semen from a storage facility and its transport to the ACT. 3. In Chapman, the sperm had been extracted under the authority of interlocutory orders made ex parte by another judge that were made prior to her husband's death (at [6]), although the extraction took place after he died (at [1]). Those orders restrained her from removing the sperm from storage and using it until further order. The plaintiff sought the discharge of the order to pursue IVF. Her husband had not given consent to any such removal during his lifetime. 4. Fagan J concluded that the order for the removal of the sperm should not have been made (at [52]). In particular, his Honour found that nothing in the Human Tissue Act provided a means by which an unconscious patient who had not given any prior consent could give authority for the removal of their sperm to avoid the general prohibition on the removal of human tissue from a living or deceased person set out in s 36(1) (at [19]). His Honour found that no such authorisation could be given by this Court in the exercise of its parens patraie jurisdiction (at [37]) or by the operation of the Guardianship Act 1987 (at [47]). 5. In Chapman, Fagan J also stated that "[t]here does not appear to me [to be] any legal foundation for the Court to make an order authorising removal of sperm from a deceased male body" (at [58]). In so concluding, his Honour addressed the scope of s 23 of the Human Tissue Act which concerns the removal of tissue from a deceased person at a hospital, which is in similar terms to s 24 and concerns the removal of tissue from a deceased person at a place other than a hospital. Section 23 enables a designated officer of the hospital to authorise the removal of human tissue in some circumstances for, inter alia, "medical purposes or for scientific purposes" (s 23(1)(a)(ii)). Fagan J agreed that phrase was "wide enough to include use in assisted reproductive procedures" (at [63]). However, his Honour referred to the definition of "human tissue" in s 4(2A) of the Human Tissue Act which specified that "except in so far as the context or subject-matter otherwise indicates or requires, a reference to tissue includes a reference to: … (a) ova and semen". Fagan J observed that the storage of extracted sperm could in practical terms only be carried out by an ART provider under the ART Act and that would be prohibited under s 25 of the ART Act if the donor had not consented (at [68]). His Honour appeared to conclude that a consideration of this "subject‑matter" meant that the definition of "human tissue" was modified in the context of s 23 (and s 24) so that it did not include semen when the relevant individual had not consented to its extraction (at [68]). Alternatively, even if it was human tissue, his Honour concluded that any exercise of the power to consent to the removal of the sperm from a person who had not consented would be unreasonable in the Wednesbury sense (ie, Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223) (at [69]). 6. Ultimately in Chapman, Fagan J concluded that the orders for the removal of sperm should not have been made but, as the removal was undertaken pursuant to orders of this Court which are valid unless and until set aside, the samples were "lawfully obtained" (at [75]). His Honour next concluded that the steps taken to store ("crypto preserve") the semen at the behest of the plaintiff in that case were sufficient to make it property of the plaintiff as owner (at [76] and [77] citing R A Hulme J in Edwards which applied Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45; see also Re Cresswell [2018] QSC 142). His Honour also applied Edwards in concluding that the transfer from a bailee, being the ART service storing the semen sample, to the rightful owner or the rightful owner's transport agent would neither constitute a "supply" for the purposes of s 21 of the ART Act or an "export" for the purposes of s 22 (at [79] to [86]). Consistent with those conclusions, his Honour varied the interlocutory orders restraining the use of the sample to enable its transport to the ACT (at [88]). 7. In Vernon, Rothman J published reasons for having made urgent orders authorising the removal of reproductive tissue for IVF treatment from the plaintiff's late husband. His Honour concluded that the removal was authorised under s 24 of the Human Tissue Act (at [31] to [32]). Further, his Honour concluded that, at the time storage of the tissue was required and which might otherwise engage the prohibition in s 25 of the ART Act, it was the plaintiff, as the person lawfully in possession of the tissue, and not her late husband, who satisfied the definition of "gamete provider" in s 4(1) (at [58]). His Honour found she acquired that right to possession upon its removal from her husband's body (at [70]) (and before it was "crypto stored" as found by Fagan J in Chapman.) 8. At this point I note three matters about Chapman and Vernon. 9. First, to the extent that in Chapman Fagan J addressed the legal basis for making orders for the removal of semen from the relevant person in that case, then his Honour's observations were obiter. As his Honour acknowledged, there was no application made to revoke those orders and the only matter for determination that arose in Chapman concerned the legal rights and obligations of the parties in respect of a tissue sample that had been extracted under a lawful order. It follows that his Honour's consideration of ss 23 and 24 of the Human Tissue Act was also obiter. The proper construction of those provisions was irrelevant to the matter his Honour had to determine. 10. Second, notwithstanding Chapman, I do not resile from the views and decision I reached in Noone (No 1) to the extent they supported Ms Noone's authority to extract human tissue, including gametes, from Mr Lum's body. With respect to his Honour, I do not accept that there is any basis for reading down the definition of "human tissue" in s 4(2A) of the Human Tissue Act to exclude reproductive tissue. The "subject matter" referred to in s 4(2A) is to be ascertained from a perusal of the particular portion of the Human Tissue Act being construed and not from a fact specific inquiry into whether the various steps required under other legislation have been complied with. Otherwise, I do not accept that Wednesbury unreasonableness has any relevance in this context. 11. Third, beyond that, both the terms of the ART Act and the discussion in Chapman raise a real issue about whether the balance of the orders made on 19 February 2020 authorising the storage of the tissue sample should have been made. However, they were made, they are valid unless and until set aside and there is no application to set aside or vary them. In those circumstances, any inquiry into whether the orders should have been made is academic. There are already enough dicta floating around in this area of discourse without adding more. Release and Removal to the ACT 1. As noted, in the end result the plaintiff only sought relief that would enable her to obtain the tissue sample and transport it safely the ACT. Her counsel, Mr James, sought to justify relief to that effect by the adoption of the definition of "gamete provider" enunciated by Rothman J in Vernon. If his Honour's construction was adopted and applied in this case then the plaintiff would be able to provide all necessary written consents under the ART Act for the storage and then transfer of the tissue sample to the ACT, however she could also provide consent for IVF treatment in NSW. 2. Ms Davidson submitted that the construction of "gamete provider" adopted by Rothman J in Vernon should not be adopted. Ms Davidson submitted that in this case (and others) the "gamete provider" is the individual whose body the gamete was obtained from. Amongst other matters Ms Davidson submitted that, if the definition of "gamete provider" extended to the person who was lawfully entitled to possession, it would tend to promote a commercial trade in gametes and undermine the scheme and objects of the ART Act. Ms Davidson pointed to s 30(1) of the ART Act which required the collection of personal data from the "gamete provider" including the "ethnicity and physical characteristics of the gamete provider" (s 30(1)(e)) and the "relevant medical history of the gamete provider" (s 30(1)(f)). Ms Davidson noted that these provisions complement Part 3 of the ART Act which establishes a Central Register of ART Treatment which make provision for recording information about gamete providers (eg, s 33D) and disclosure of information about donated gametes (eg, s 38). Ms Davidson submitted that these provisions would be undermined if not crippled if the phrase "gamete provider" referred to the owner of the tissue sample even if that is different from the donor of the tissue sample. 3. Mr James pointed out that this information about a gamete provider's ethnicity and physical characteristics as well as their medical history was only required to be provided in relation to a donated gamete (s 30(2A)) and thus had no application to this case. That may be so, but it is difficult to see how the definition of "gamete provider" differs depending on whether the gamete in question is a "donated gamete" or not. Mr James also pointed to the definition of "obtain" in s 4(1) as including "received from" as being apt to include the owner of the tissue sample. He submitted that the definition of "gamete provider' could have, but does not, refer to the person from whom the gametes were extracted or taken. 4. Although there is considerable force in Ms Davidson's submissions, in the end result it is not necessary to resolve this debate. Consistent with the above observations, I should not do so. This is so because both Mr James and Ms Davidson accepted that declaratory relief supporting Ms Noone's present entitlement to the tissue sample and her ability to transport it to the ACT was supported by so much of the reasoning in Chapman that concerned the fate of the sample after it was removed from the plaintiff's husband's body and by Edwards (see [42]). That aspect of the reasoning in Chapman was essential to the orders made in that case. Further, as the tissue sample in this case has been both removed and "crypto stored", it is not necessary to resolve the disagreement between Vernon and Chapman as to when the plaintiff obtained property in the tissue sample. She has certainly acquired it by this time. The balance of the reasoning in Chapman and Edwards, which I adopt, confirms that neither Ms Noone nor Genea will be in breach of the ART Act if they arrange the safe transport of the tissue sample to the ACT. The fate of the tissue sample in the ACT is a matter for the laws of that polity. ********** Endnotes 1. Attorney-General's written submissions dated 11 December 2020 at [63]; "A-G subs". 2. Affidavit of Catherine Bridge Noone sworn 13 November 2020 at [16]; "Noone Affidavit". 3. Noone affidavit at pp 11 to 13. 4. Noone Affidavit at pp 15 to 23. 5. Noone Affidavit at p 15. 6. Noone Affidavit at pp 16.9 and 17.1. 7. Noone Affidavit at p 17. 8. Noone Affidavit at p 22. 9. Noone Affidavit at p 21. 10. Noone Affidavit at p 33. 11. Annexure "DWR-4" to the Affidavit of David Riwoe sworn 24 September 2020. 12. Annexure "DWR-6" to the Affidavit of David Riwoe sworn 24 September 2020. 13. Noone Affidavit at p 45. Amendments 18 December 2020 - Human Tissues Act amended to Human Tissue Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020