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Notes
The facts are taken from the judgment of White J, [10] ff.
Later medical investigations led to a diagnosis in late 2009 of an inflammatory condition of the spine.
There later was some debate as to whether the first application was strictly necessary, by reason of certain statutory provisions: [26]–[40]. See also MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231; Re Gray [2000] QSC 390; [2001] 2 Qd R 35; Baker v State of Queensland [2003] QSC 2; Re Denman [2004] QSC 70; [2004] 2 Qd R 595. For a recent example, see Re Floyd [2011] QSC 218 and The Courier-Mail’s August 3, 2011, article, “Supreme Court allows woman’s application to take and store sperm from dead fiancé, who was killed at level crossing” (http://www.couriermail.com.au/news/queensland/supreme-court-allows-womans-application-to-take-and-store-sperm-from-dead-fiance-who-was-killed-at-level-crossing/story-e6freoof-1226107457601).
Similar evidence in support of the application was led in Re Floyd [2011] QSC 218—the applicant had the support of the mother as well as the rest of the family of the deceased. The coroner (to whom the death had been reported because the fiancé had died in a level-crossing accident and suffered a violent death) had indicated that he would abide by any court order.
See the discussion at [43]: “Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 is a starting point. It concerned the body of a ‘two headed baby’ which had been still-born in 1868. The attending doctor, Dr Donahoe, took the body away and preserved it in spirits in a bottle and kept it in his surgery as a curiosity. When Dr Donahoe died in 1870 the preserved body was sold as part of his personal effects. It then came into the possession of the appellant who exhibited it for gain. The defendant, a police inspector, seized the bottle and its contents. The plaintiff brought an action in detinue. A majority of the High Court (Griffiths CJ and Barton J) held that he was entitled to an order for recovery of the body.”
In this context, the only pertinence of Mrs. Edwards being administrator of the estate was that the views of such a person would be relevant in determining whether the discretion should be exercised in making the declaration sought.
Protecting the interests of persons born as a result of ART treatment is an express object of the New South Wales Assisted Reproductive Technology Act 2007, s 3(b)(i), [105]–[106].
MAW v Western Sydney Area Health Service[2000] NSWSC 358; (2000) 49 NSWLR 231.
No view, however, was expressed as to the strength of the inference that Mr. Edwards was in favour of having a child even after his death, a matter that Hulme J considered may be of considerable significance to any ART provider approached by Mrs. Edwards with a view to obtaining ART [142].
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Richards, B., Madden, B. & Cockburn, T. Considering the “Born-Alive” Rule and Possession of Sperm Following Death. Bioethical Inquiry 8, 323–327 (2011). https://doi.org/10.1007/s11673-011-9324-0
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DOI: https://doi.org/10.1007/s11673-011-9324-0