You may have seen or heard in the news recently that a widow has been granted possession of her deceased husband’s sperm, which she intends to use to conceive a baby. The case is called Jocelyn Edwards: Re the Estate of the late Mark Edwards [2011] NSWSC 478 and it serves to highlight the complex legal and ethical issues surrounding the ownership and control of a deceased human’s sperm. The case also demonstrates the interplay between family law, medical ethics and property law in such cases, and the resulting need for expert legal advice.

Biotechnological advances have posed a challenge to the laws of property (ownership and control) because the laws of property were made wellbefore methods of assisted reproductive technology were conceptualised and developed. These scientific developments will no doubt see our courts and law makers confronted with complex questions concerning legal interests in human biological materials, such as sperm, embryos and cells. In other words, this unusual case is likely to become far less unusual within the next few years.

The relationship between Jocelyn and Mark Edwards

Jocelyn and Mark Edwards were married in November 2005 and they planned to have children soon after. In 2008, when Ms Edwards had still not fallen pregnant, the couple discussed using assisted reproductive technology.

On Valentine's Day in 2009 Mr Edwards, plagued by chronic back pain since 2008, expressed to his wife a concern that he might have a terminal illness. Ms Edwards said that in telling her of his fears in this regard he also said to her:

"If something happens to me I would want a part of me to be here with you. Our baby will be a part of us - our legacy even after we are both gone. She will be the bond that unites our families. The bond between [their two children]. If we find out I have cancer I want to make sure we have our baby before I am unable to have one, before I do any chemo. Please promise me you will still have our baby".

Tragically, on 5 August, Mr Edwards was fatally injured in a workplace accident. Inquiries were made with hospital staff about extraction of sperm to enable Ms Edwards to proceed with the assisted reproductive technology as she and Mr Edwards had planned.

Ms Edwards obtained the consent of the Supreme Court of New South Wales to retrieve sperm from her late husband’s body and it was transported to a laboratory for preservation pending a further decision of the Supreme Court of New South Wales.

The Court Proceedings

Lack of written consent from Mr Edwards Ms Edwards initially sought the Court’s permission to have her late Husband’s sperm released to her so she could use it for the purposes of conceiving a child using assisted reproductive technology. The late Mr Edward’s family indicated their support for Ms Edward’s having the right to use the sperm to conceive a child.

Unfortunately for Ms Edwards, section 17 of the Assisted Reproductive Technology Act 2007 (NSW) prohibited her from using her late husband’s sperm in assisted reproductive technology because she was unable to obtain his written consent prior to his death.

Wife’s proprietary interest in the sperm of Mr Edwards

Thwarted by the absence of her late husband’s consent, Ms Edwards then tried to convince the Court that as the administrator of her husband’s estate, she was entitled to possession of the sperm, or as an alternative, that as administrator the sperm had become her property.

The Supreme Court rejected the proposition that Ms Edwards was entitled to possession or property in the sperm by virtue of her position as administrator because “Mr Edwards did not have property in his sperm when he was alive, it did not form part of the assets of his estate upon his death.”

However, the Court accepted that the sperm which had been removed from the late Mr Edwards was capable of being property. The question that followed was; whose property was it?

Disappointingly, the Court did not expressly answer this question as to whose property the sperm was, but the assumption of ownership is implied by the Court’s conclusion that “Ms Edwards was the only person with whom entitlement to property in the sperm would lie.” Nevertheless, the Court was reluctant to commit to an express statement that the sperm was the property of Ms Edwards, and instead held that “Ms Edwards is entitled to possession of the sperm recovered from her late husband.”

Where to from here?

While the Court recognised that Ms Edwards was entitled to possession of the sperm, the requirement she have her late husband’s written consent means the Court’s hands were tied - she is prevented from using it to conceive a child using assisted reproductive technology in New South Wales. The Court observed that although it is apparent that Mr Edwards wished to have a child with Ms Edwards, it is not clear whether he contemplated that a child might be born as a result of assisted reproductive technology after his death. Victorian, South Australian and Western Australian legislation also prevents Ms Edwards from lawfully using the sperm because of the fact that Ms Edwards was unable to obtain her husband’s written consent before his death.

There is a possibility that Ms Edwards can apply to another jurisdiction where the requirements of consent are less restrictive.

It is clear that this case turns on the issue of consent. Had Ms Edwards obtained Mr Edwards written consent before he died, she would have avoided this expensive and emotional legal battle. However, we doubt that Ms Edwards knew about the requirements of written consent prior her late husband’s death.

The full judgment is available here: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478.

Should you wish to discuss any aspect of this decision that may be relevant to you, please contact RKL on {addressdetail telephone}.