In what is an increasingly common circumstance, in April 2015 Burns J of the Supreme Court of Queensland granted an application by a Ms Patteson for the removal of her deceased fiance’s testes and sperm. The judgment was made ex tempore – on the spot – in light of the urgent nature of the case. The applicant’s fiance had, sadly, died the night before the judgment. For sperm of a deceased man to remain viable, they must be harvested and properly stored within 24 hours of death. The judge had to decide the matter immediately.

In such urgent applications, it is not the court’s role to approve the use of the sperm for fertilisation. The applicant must make a further application to use the sperm. Burns J made it clear that the court’s jurisdiction in this case extended only to approval of the removal of the testes and sperm. Ms Patteson, he said, could return to the court ‘after mature reflection’ to make an application for the use of the sperm for the purpose of fertilisation.

While far from the first such judgment, there is one aspect that has arisen before and that prompts some thinking about the basis on which such judgments are made. In doing so, no judgment is made of the applicant or her circumstances, which should at all times be respected. On the contrary, the issues underlying such judgments speak to the system and how the law should consider the body of a deceased.

As with the 2011 case of Re Floyd, Burns J relied on the provisions of the Transplantation and Anatomy Act. Under s24(4), the Coroner might give a direction that bodily material of a person who has died from a ‘reportable death’ be removed, without the need for consent. The deceased in this case had tragically taken his own life, and therefore his death was reportable. Although the Coroner had not directed the removal of the tissue of the deceased, he had indicated that he would comply with a court order to that effect.

The judge found the balance of convenience would be served by removal of the sperm. That is to say, the potential harm from not removing the sperm (loss of the possibility of conceiving a child to her deceased husband) outweighed the benefits in leaving them in the deceased (not interfering unnecessarily with a corpse).

With the greatest respect – and in the face of more than one Supreme Court judgment to this effect – I do wonder about the application of the Transplantation and Anatomy Act as founding a right in a private citizen to the removal of tissue of a deceased person. The long title of the Transplantation and Anatomy Act says that the Act is

an Act to make provision for and in relation to the removal of human tissues for transplantation, for post-mortem examinations, for the definition of death, for the regulation of schools of anatomy, and for related purposes

On its face, the testes and sperm to be extracted were not to be used for any of these purposes. It may perhaps be asked if the sperm, ultimately used for fertilisation, may be considered to be ‘transplanted’. Section 4(2) of the Act defines transplantation:

A reference in this Act to the transplantation of tissue shall be read as including a reference to the transplantation of any part of the tissue and to the transplantation of a substance obtained from the tissue.

This does not really assist interpreting whether fertilisation is transplantation. In my view however, fertilisation is quite a different medical process than that of transplantation. Further, and perhaps a little more pedantically, the immediate purpose of the extraction was storage of the sperm – not the purpose of ‘transplantation’. The later use of the sperm would be subject first to the applicant’s own wishes, and secondly, subject to her successful application to a court.

For these reasons, I do not think that the Act is relevant in determining such an application. I suspect, however, that it is the best that the law might allow at the moment. It is difficult to see any other basis on which Ms Patteson might have a claim to remove testes and sperm from her deceased fiance even though the judge accepted her affidavit evidence that the couple had been trying to conceive, and were eager to start a family.

The question of rights to use the sperm for fertilisation are different, but arguably related – and we still have a shaky foundation for these. In Re Edwards for example, Ms Edwards was found to have a ‘quasi-property’ right in sperm removed from her deceased husband while he was alive. This is really an example of the law’s reluctance to admit that there might be property in any part of a human being, while trying to afford possessory rights to another person. I’ve also written before about the unclear status at law of sperm given by a donor while alive. And this latest Queensland decision, leaves unresolved questions about the right to remove and store the sperm (and testes) of a deceased.

I suppose that this is a question to be determined by Parliament. Perhaps it could include sperm removal within the provisions of the Transplantation and Anatomy Act. Perhaps it might even extend the power to remove to circumstances where the deceased died from a non-reportable death. But this would surely open the floodgates to sperm removal and storage as a matter of course. On this scenario, every time a man dies, the doctors take sperm and store them – just in case someone wants to make an application to use them to have a baby. I’m not sure that this is an intended or desirable outcome.

In the absence of legislative clarification or some more creative manoevering by the courts, the question of sperm removal will remain in ambiguous territory.