Re Edwards: Who Owns a Dead Man’s Sperm?

Journal of Medical Law, Vol. 19, No. 3, pp. 479-489, 2012

11 Pages Posted: 21 Mar 2012

See all articles by Jatine Patel

Jatine Patel

University of Hamburg - Institute of Law and Economics; University of Oxford

Thomas Alured Faunce

Australian National University

Date Written: March 19, 2012

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.

Keywords: in-vitro fertilisation, intra cytoplasmic sperm injection, international human rights, best interests of child, consent

JEL Classification: K42, I12, I13, J71

Suggested Citation

Patel, Jatine and Faunce, Thomas Alured, Re Edwards: Who Owns a Dead Man’s Sperm? (March 19, 2012). Journal of Medical Law, Vol. 19, No. 3, pp. 479-489, 2012 . Available at SSRN: https://ssrn.com/abstract=2026258

Jatine Patel

University of Hamburg - Institute of Law and Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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