Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478

Supreme Court New South Wales

Medium Neutral Citation: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 Hearing dates: 18 April 2011 Decision date: 23 May 2011 Jurisdiction: Common Law Before: R A Hulme J Decision: Declaration made that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband. Ancillary order made. Catchwords: PERSONAL PROPERTY - ownership and possession - possession - SUCCESSION - executors and administrators - rights, powers and duties - - application by wife for possession of sperm extracted from body of late husband - Human Tissue Act 1983 - circumstances in which sperm was extracted from deceased body - whether sperm extracted in such circumstances can be characterised as "property" - wife as administrator of estate of late husband - intended use outside New South Wales in assisted reproductive treatment to conceive a child - no written consent by late husband to such use - Assisted Reproductive Technology Act 2008 - whether application should be granted where it is likely sperm will be used out of State for a purpose prohibited within State - discretionary factors Legislation Cited: Assisted Reproductive Technology Act 2007 Assisted Reproductive Treatment Act 1988 (SA) Assisted Reproductive Treatment Act 2008 (Vic) Coroners Act 2009 Human Reproductive Technology Act 1991 (WA) (Western Australian Government Gazette No 201, 30 November 2004 Human Fertilisation and Embryology Act 1990 (UK) Human Tissue Act 1982 (Vic) Human Tissue Act 1983 Infertility Treatment Act 1995 (Vic) Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules 2005 Cases Cited: AB & Ors v Leeds Teaching Hospital NHS Trust and Anor [2004] EWHC 644 (QB) AB v Attorney-General for the State of Victoria [2005] USC 180; (2005) 12 VR 485 Baker v State of Queensland [2003] QSC 2 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 Dobson v North Tyneside Health Authority [1997] 1 WLR 596; [1996] 4 All ER 474 Doodeward v Spence [1908] HCA 45; (1908) CLR 406 Hecht v Superior Court of Los Angeles County (1993) 20 Cal Rptr 2d 275 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231 Moore v Regents of the University of California (1990) 793 P 2d 479 Pecar v National Australia Trustees Ltd and Anor, unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996 R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687 R v Kelly [1999] QB 621; [1998] 3 All ER 741 R v Rothery (1976) 63 Cr App R 231 R v Welsh [1974] RTR 478 Re Gray [2000] QSC 390; [2001] 2 Qd R 35 Re Denman [2004] QSC 70; [2004] 2 Qd R 595 Roche v Douglas [2000] WASC 146; (2000) WAR 331 S v Minister for Health (WA) [2008] WASC 262 Williams v Williams [1882] 20 Ch D 659 Y v Austin Health [2005] VSC 427; (2005) 13 VR 363 Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1 YZ v Infertility Treatment Authority [2005] VCAT 2655 Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 Texts Cited: Agreement in Principle Speech for the Bill by the Minister of Health (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007 at 3643) Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, June 2007 Protection of Human Genetic Information DP 66 (2002), ALRC, Sydney Ch 17 The Applicability of Property Law in New Contexts: From Cells to Cyberspace (2008) 30(4) Sydney Law Review Category: Principal judgment Parties: Jocelyn Edwards Attorney General of New South Wales Representation: Counsel: Mr C Simpson SC with Mr J Darvall (Plaintiff) Mr J Kirk (Attorney General) Solicitors: Milne Berry Berger & Freedman (Plaintiff) Crown Solicitor's Office (Attorney General) File Number(s): 2010/260864