Re Denman[2004] QSC 70

[1] HER HONOUR: The applicant, Elizabeth Ann Denman, is a 30-year-old woman who, until yesterday, was married to Gary Edward Denman, a 40-year-old man. Mr Denman was killed accidentally, and therefore entirely unexpectedly, yesterday, 11 February 2004.

[2] Mr and Mrs Denman had known each other for some long period of time, but for the past five years they had lived in a de facto relationship and often spoke of their desire to have children and their desire, specifically, to have two children. In furtherance of that desire, four months ago they married in order to have children.

[3] Because Mr Denman died unexpectedly, he had no sperm stored and he left no will. It seems inevitable that Mrs Denman will be entitled to be the administrator of his intestate estate. Neither Mrs Denman nor Mr Denman had been previously married, and neither of them have or had any children.

[4] Mr Denman's body is at the John Tonge Centre and Dr Lampe from the Queensland Health Scientific Services, has removed a testicle from his body for the purposes of spermatozoa being harvested and stored from that testicle. Dr Lampe is prepared to remove the other testicle subject to an order of this Court. Mandy Robertson, a professional in the field, is prepared to harvest and store the spermatozoa and has informed the solicitor who appears for the applicant that the best opportunity to do so would be if both testicles were removed and that it should be done within 24 hours to four days of Mr Denman's death.

[5] The applicant faces the difficulty that this matter has been considered on two previous occasions by single judges of this Court in Re Gray [2001] 2 Qd R 35; and Baker v. Queensland, number 39 of 2003, unreported, 6 January 2003. On both occasions the application was dismissed.

[6] An application such as this is one of the contentious matters that arises because of the modern medical capacity to remove sperm from a deceased man, and to use that sperm to produce an embryo. As was said by Matthew Lynch in "Property in Human Gametic Material and the New Reproductive Technologies" (1999) 6 Journal of Law and Medicine 348 at 354, "the concept of posthumous use of human spermatozoa is not a recent phenomena. The idea of sperm banking arose in the mid-19th century as people contemplated the implications of the "man of the house" not returning from battle. The problems posed by such technologies are also not novel [with] implications for family structure, child support... [and] inheritance issues."

[7] The spermatozoa which have been taken from deceased men have apparently been successfully used to produce children. In some jurisdictions such reproduction is unlawful by statute. Canada, France, Germany and Sweden have, according to Dr Lynch's article, legislation forbidding posthumous reproduction; however, there have been cases in other jurisdictions where an application such as the present has been allowed.

[8] The examples are given of Re Hecht, 16 Cal App 4th, 836; 20 Cal Rpts 2d 275(1993), where the deceased left a specimen of spermatozoa at a cyrobank and committed suicide, leaving instructions that the specimen be given to his partner. The Californian Court ruled that the spermatozoa were gametic material and could be bequeathed in a will and that posthumous artificial insemination would not violate any public policy.

[9] The Court of Appeal in California referred to Paraplaix v. CECOS in which a French Court, Tribunaux de Grande Instance, ruled that a wife could be inseminated with the spermatozoa from her husband, who had died from testicular cancer having left a semen sample, but no instructions as to its desired use.

[10] Similarly in the case of R v. Human Fertilisation and Embryology Authority, Ex Parte Blood [1997] 2 All ER 687, Mrs Blood was allowed access to a semen sample from her husband, who died suddenly from meningitis. In that case a sample had been obtained from a comatose Mr Blood shortly before his death.

[11] In AB v. Attorney-General (Vic), unreported, Supreme Court of Victoria, number 6553 of 1998, 21 July 1998, Gillard J, on appeal from a coroner, ordered that permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of the deceased and that the tissue be stored in keeping with the widow's express wish.

[12] In New South Wales O'Keefe J held in MAW v. Western Sydney Area Health Service (2000) 49 NSWLR 231 that the parens patriae jurisdiction of the court did not extend to the authorising of a non-therapeutic surgical procedure such as the removal of semen from a comatose patient.

[13] There is no authority binding on me requiring me to accede to or refuse the application.

[14] There is a body of law on the question of whether or not there is any property in a dead body. The High Court held in Doodeward v. Spence (1908) 6 CLR 406 that a dead human body could, under some circumstances, become the subject of property.

[15] There is a provision of the Criminal Code, section 236, that provides that, "Any person who, without lawful justification or excuse, ...

(b)Improperly or indecently interferes with, or offers any indignity to, any dead human body or human remains, whether buried or not; is guilty of a misdemeanour.

[16] It appears to me at least strongly arguable that removing the testes of a dead man in order to harvest sperm could not be seen as indecently interfering with or offering indignity to that body, particularly when it is his widow who wishes to have that sperm in accordance with the keenly expressed desire of both herself and her recently deceased husband to have children.

[17] The present application potentially involves the determination of two questions. The first question in this case is whether or not the spermatozoa should be allowed to be harvested in order to determine its future use. The second question is whether or not the harvested sperm can be used for posthumous insemination. It is only necessary at this stage to determine the first question. At this stage, the question is very similar to that to be decided on an interlocutory injunction; is there a serious question to be tried and, if so, what does the balance of convenience require should be done?

[18] As there is no express statutory prohibition on the removal of sperm from a deceased person in Queensland, it appears to me there is a serious question to be tried as to whether or not sperm can or should be removed from a deceased person and used for the purpose of posthumous reproduction.

[19] Both of the judges who decided the cases I have referred to in Queensland referred to what they regarded as strong public policy arguments against such a course. Those arguments are valid, but there are also valid public policy arguments in the other direction.

[20] It is certainly the case that any child born, if that were to happen as a result of successful posthumous reproduction, would be born without a father, but children have been born without fathers for a very long time. After impregnation, a father may leave the mother permanently or he may die before the birth of the child. If the father dies before the birth of the child, that child has no father when it is born and yet, from the reading I have been able to do before hearing this case, there does not appear to be any research which suggests that the outcomes for such a child are any worse.

[21] No doubt it is preferable for a child to have not one but two parents, both of whom fulfil their parental responsibilities, but many children do not have that, and there are many children who do extremely well in one parent families. It cannot be thought that because the child will only have one living parent that will necessarily not be in its best interests, particularly when the alternative is for the child not to exist at all.

[22] There is room for much debate as to the public policy issues involved in such a case and it may be that the law needs to develop to keep up with scientific advances and the opportunities that those scientific advances have given for children who might not otherwise have been able to be conceived to be born.

[23] Sheila AM McLean in her article "Post-mortem Human Reproduction: Legal and Other Regulatory Issues" in (2002) 9 Journal of Law and Medicine, 429 at 435, refers to its being:

"the hallmark of the liberal Western tradition that the state should interfere in the private lives of its citizens only where the behaviour causes harm to others."

In that article she refers to successful post-mortem sperm procurement and pregnancy following use of that sperm.

[24] In this case where there is no express statutory prohibition then in my view, the harvesting of Mr Denman's spermatozoa ought be permitted in the absence of any suggestion of harm to others. The Supreme Court, as McPherson J observed in Boyd v. Halstead, ex parte Halstead [1985] 2 Qd R 249 at. 255, is the "heir to the jurisdiction of the common law courts at Westminster" and "has in its favour the presumption that nothing is outside its jurisdiction unless expressed to be so intended".

[25] As to the balance of convenience, in my view the balance of convenience clearly requires that the sperm be harvested so that its use can be determined. If it is not harvested then there is no relief that can be sought by the applicant. Whereas if it is harvested, then it can be determined by this Court or the Court of Appeal whether or not that sperm, once stored, ought be used.

[26] In my view, giving respect to the decisions in Gray and Baker, the Court has the inherent jurisdiction to allow behaviour which is not unlawful.

[27] As I am not aware of any statutory prohibition on the course proposed by Mr Berry, who acts on behalf of the applicant, and as Dr Lampe and Ms Robertson have indicated their willingness to perform their services, I propose to order that Dr Lampe be permitted to remove the remaining testicle of the deceased Gary Edward Denman and that Mandy Robertson be permitted to harvest and store the sperm.

[28] However, I also order that that sperm not be used except by order of this Court.

[29] The reason I do that is because this application has perforce had to be heard urgently late in the day without opposition and with little chance for the applicant's solicitor to prepare and make full submissions.

[30] A matter such as this, in my view, warrants the mature consideration that can be given to it once the status quo is maintained by the harvesting and storage of the sperm. Whether or not it should be used, must await a decision on another day.

[31] Those are the orders I intend to make.

[32] I order that service of this order may be made by telephone by the applicant's solicitor to Dr Lampe and Ms Robertson.