Australian Property Law and Biological Material

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Introduction

Advancements in modern technologies in the field of assisted reproductive technology (ART) have opened up the world to a vast array of possibilities. Scientists have developed the ability to retrieve and preserve individual gametes and embryos by way of cryopreservation, a technique that involves preserving biological materials at very low temperatures outside the body for years. . This field of in vitro fertilization (IVF), worth $2 billion annually in the United States, has forced us to think about human tissue in ways never before thought possible. These advancements have meant that it is now possible for children to be conceived after the death of one of their genetic parents. The first reported case of posthumous sperm retrieval (PSR) was in 1980 and between then and 1995 there were 82 requests for PSR in the US alone. While PSR has enabled males (predominately), previously deemed sterile once again fertile, it has posed a number of issues that have been described as the “most challenging, difficult and sensitive that are likely to be encountered in the field of medicine”. Jocelyn Edwards; Re the estate of the late Mark Edwards represented the first time in NSW that a woman was allowed to harvest the sperm of her deceased partner. However, it highlighted a number of issues concerning the control of processes involving gametes, the right to use and control them and whether gametes can actually be considered as property, as well as the obvious moral and ethical issues with completing such a radical procedure. Furthermore, there are those that concern the rights of the child, as well as the danger of commercialisation. This essay will explore each of the policy issues raised in Re Edwards and the concerns for the broader community spectrum as a whole.

Technology, indeterminacy and the need for law reform

In the Concept of Law, H.L.A. Hart dictates his theories of legal adjudication and hypothesises his resolution to doctrines of legal indeterminacy and uncertainty. Hart acknowledged that there are gaps in the law and that the existence of a valid legal rule or principle cannot always be applied to determine the resolution of all legal disputes. For Hart, the law is ‘open textured,’ in that it fails to fully encapsulate all examples or precedents and because of this, judges possess discretion in their adjudication. In this sense, judges adopt elements of the legislature; where there are gaps in existing rules and principles, they simply create new laws.

The previously addressed influx of new technology concerning assisted PSR has created these ‘gaps’ in the law where the legal system had not fully addressed the realm of possibilities the new technology posed. As Moses highlights, “once a technology becomes more widely accepted and used, any legal problems associated with that technology will become more urgent.” Although there have been efforts to address the gap, through both State and Federal legislation, the increased exposure to ART and use of IVF resulted in a level of indeterminacy in Re Edwards, where the NSW legislation failed to clearly articulate the definition of ‘supply’. This lack of clarification created a gap that arguably allowed Hulme J to interpret the term using his own construction; that the action of handing the sperm to Jocelyn Edwards constituted a ‘release’ of the sample and not in the prohibited sense of ‘supplying’. This construction could be viewed as a violation of the doctrine of parliamentary supremacy, where Hulme J has simply formed an interpretation to suit his own agenda. Nevertheless, it highlighted the inherent gap between PSR technology and the law, one which must be remedied either through further judicial interpretation or the introduction of further clarifying legislation.

Consent

There are two major issues of consent in Re Edwards that give rise to policy concerns. By Hulme J’s own admission, there was no written consent by Mr. Edwards...
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