Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231

Supreme Court New South Wales

Medium Neutral Citation: Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 Hearing dates: 6 July 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Common Law Before: Fagan J Decision: 1. It is declared that the plaintiff is entitled to the possession of the sperm recovered on 28 March 2018 from the body of her late husband Joel Chapman, subject to orders 2 and 3.

2. Orders 5 and 6 made by Garling J on 28 March 2018 are varied to the extent that the first defendant is hereby ordered to deliver up possession of the said sperm to the plaintiff but only upon the plaintiff causing a suitably equipped transportation company or courier to collect it on her behalf from the first defendant on consignment for transportation to a storage facility in either Tasmania, the Australian Capital Territory or the Northern Territory.

3. If collection pursuant to order 2 has not taken place by 10 December 2018 the first defendant is to destroy the sample. Catchwords: PERSONAL PROPERTY – ownership and possession – possession – rights of possession – human bodies or tissue as property – gametes – sperm – application by widow for possession of sperm extracted from late husband – whether sperm lawfully extracted – whether transfer of possession prohibited by statute – Assisted Reproductive Technology Act 2007 (NSW), s 21

CIVIL PROCEDURE – miscellaneous matters – declarations – application by widow for declaration of ownership of sperm – where sperm extracted from body of deceased husband pursuant to court order – where existing statutory regime regulates extraction, storage, supply, use and exportation of human gametes – Assisted Reproductive Technology Act 2007 (NSW), Pt 2 Div 3 – Human Tissue Act 1983 (NSW), ss 4(2A), 23 – declaration granted