Warren Bazley provided a semen sample (the semen) to the Wesley Monash IVF clinic (IVF Clinic), prior to undergoing chemotherapy, so that his wife (Kate) might conceive their child. Unfortunately, Warren passed away before his wife became pregnant.
Following Warren’s death, in response to Kate’s request to continue storing the semen, the IVF Clinic responded that National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (the Guidelines) directed that it is “tragic” when a child does not know a parent, and that clinics should not facilitate treatment or continued storage unless the deceased clearly expressed intentions to do so that were witnessed.
These directives were also stated in Warren’s signed IVF Clinic consent form. Warren did not provide any written, witnessed directions for the use of the semen, in his will or elsewhere. Nevertheless, Kate’s co-executor swore in an affidavit that he would support Kate’s sought use of the semen.
As such, Kate sought Court orders that the semen be transported to a clinic of her choosing, and not be destroyed.
The Court held that “the straws of semen currently stored with the respondent are property” (para. 33) for the purposes of the estate. The Court discussed various precedents concerning proprietary rights of bodies and bodily tissue, and concluded that the physical existence of the semen and the irrelevance of traditional policy rationales for denying property rights meant that there could be property in the semen.
The Court held that ownership of the semen “vested in the deceased whilst alive and in his personal representatives after his death” (para. 33). Furthermore, it considered that the IVF clinic was in a contractual relationship with Warren’s estate and was obliged, if requested, to return the semen “preserved [with all of] its essential characteristics as frozen semen capable of being used” (para. 33). The semen was essentially held under a bailment from Warren Bazley to the hospital, which then reverted back to Bazley’s estate upon his death.
“The question for determination is whether sperm extracted and stored can be described as ‘property’ and thus form part of Mr Bazley’s estate. If it is property, then certain rights may attach and vest in his personal representatives.” Para. 16.
“The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. The arrangement could also come to an end when the respondent died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner which it was held, which preserved its essential characteristics as frozen semen capable of being used. Any extra costs associated with that redelivery would be at the applicant’s expense. Such conditions may be imposed by r 250, if necessary.” Para. 33.
