Re Edwards (2011) 4 ASTLR: Who Owns a Dead Man's Sperm?

Abstract

Re Edwards (2011) 4 ASTLR 392; [2011] NSWSC 478 adds to the small line of cases to have considered whether a woman can not only require medical staff to remove sperm from her dead male partner, but whether she is justified in terms of law and international human rights to use it to create children. In this case a Justice of the New South Wales Supreme Court framed the issue as "what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?" He did so, despite the manifest ambiguity and difficulty in characterising the legislative rights in this case, without referring to substantive human rights obligations under international Conventions to which Australia is a ratifying party (particularly Art 10 of the United Nations International Covenant on Economic, Social and Cultural Rights and Art 23 of the United Nations International Covenant on Civil and Political Rights. Technological advances such as those creating the possibility of capturing a dead person's sperm by electro-ejaculation and creating children by subjecting it to intracytoplasmic sperm injection in connection with in vitro fertilisation have altered the balance of individual and social interests in deciding who should be regarded as owning a dead man's sperm and how that relates to basic common law rights of bodily inviolability without free consent. It is to be regretted that in jurisdictions lacking relevant constitutional human rights, or legislation requiring coherence with international human rights, judges do not avail themselves in cases of statutory ambiguity of interpretative insights to be gained from legally binding human rights treaties to which Australia is a party.