I recently presented at the American Bar Association ART conference in Carlsbad, California. Here is the paper that I prepared for that conference:
AMERICAN BAR ASSOCIATION
FAMILY LAW SECTION
7 MAY 2015
What do you do when its ova?
By Stephen Page
HOW TO PREPARE FOR THE OWNERSHIP/USE OF FROZEN GAMETES, ESPECIALLY EMBRYOS.
There are three potentially conflicting issues:
1. Are gametes, including embryos, considered to be property?
If gametes are property then they may be the subject of laws concerning their ownership, use or disposal, for example in the case of divorce.
If they are considered to be property then they may be considered to be a special form of property with various restrictions. If they aren’t considered to be property, then there may be a black hole in which they can’t be stored, used or disposed of except due to some arcane whirl of law or practice.
2. If gametes are property, who can own or use them?
As a matter of law in your jurisdiction are the owners of the gametes the couple or each of them who are the intended parents, or is it the genetic intended parent or indeed the donor?
3. Who is/are the parent/s?
Assuming that use can be made of the gametes and that that use results in them conception of a child, who will be the parents of that child? Will only one parent be recognised as a matter of law? With a divorcing couple, and the wife becoming pregnant and giving birth after the divorce, will the husband be presumed to be the father, even though he didn’t want to have any more children?
The dozen eggs checklist of the use of gametes
1. Are the ownership or use of the gametes (or have they been) the subject of a pre-nup?
Quite obviously, if gametes can be considered to be property of a couple then it may be possible, subject to the laws of the jurisdiction, that the gametes may be able to be the subject of a pre-nup. Therefore it may be worthwhile drafting clauses in a pre-nup concerning gametes or if acting for one of the parties after a relationship bust up to enquire if there is a pre-nup. It may be surprising that a pre-nup covering all other property of the parties and how it is to be treated may at least inadvertently, cover the ownership, use or disposal of gametes.
2. Have the clients planned for these eventualities with the clinic?
It is quite possible that the likely exception to the rule, the clients have executed forms with the clinic which clearly articulate what is to happen with the gametes in the case of a relationship breakdown. More likely they will have executed consent forms with the clinic which will be vague in their nature.
If you are therefore able to give advice to clients before conception occurs, you may be able to carefully draft the form of any consent. It is essential in any case if acting for one of the parties post the breakup to obtain a copy of the consent forms from the clinic.
3. Is the consent form binding?
If the parties come to you before conception, is it possible for you to draft a consent form that is binding?
4. What requirements are there as a matter of law to ensure that it is binding, including, for example, whether it needs to be notarised?
If you were engaged after the event is the consent form binding?
5. Having the assistance of counsellors may mitigate risk
I have the greatest of respect for fertility counsellors and their ability to discuss with intended parents as to what ifs. We should all encourage our clients who are contemplating undertaking these procedures to have thorough fertility counselling. Whilst it may not solve the position as a matter of law, managing the expectations of each of the parties through the use of counselling may be a wonderful preventative tool to the outbreak of World War 3 if the parties ever split up. It may be possible that evidence of what was discussed in counselling may be relevant and admissible in subsequent court proceedings between the parties.
6. Can there be a post relationship agreement or order covering the gametes?
This may be different from jurisdiction to jurisdiction. If there can be such order or agreement, then ordinarily one would think it’s a better idea to have such an order or agreement to formalise and finalise the arrangements.
7. If so, what conditions need to be fulfilled before there can be an order or agreement?
8. Is there some rule of law or practice that prevents a fertility clinic from carrying out the order or agreement?
When one considers the regulation of IVF doctors and clinics as well as related issues to do with surrogacy, for example, one comes across at times quite obscure legislation or licencing requirements which are not obvious at first blush.
In addition, IVF clinics may adopt certain practices which are not unlawful but are more stringent than the law demands, or inconsistent, but in any event make the journey towards parenthood that much more difficult. It is important to know when dealing with individual IVF clinics as to what their particular practices are so that your client is not stymied.
Examples of some such practices from clinics in Australia are:
9. If the gametes are moved elsewhere, is the other fertility clinic prevented by some rule of law or practice from carrying out the order or agreement?
See question 8!
Often the easiest way to fix a problem with jurisdiction or with a particular clinic is to move the embryos to another clinic. However, it is important as part of the planning process to check the laws in the jurisdiction of the second clinic and its internal procedures so that your clients don’t engage in a futile, costly and stressful experience of moving embryos from one clinic to another to find that they can’t be used at the second clinic either.
10. What impact is there from parenting presumptions?
When we as lawyers are helping clients make babies, we must always be aware of the relevant parenting presumptions.
As Charles Kindregan and Maureen McBrien make plain the courts have employed three tests to determine legal parentage:
1. Intent of the parties;
2. Genetic relatedness of the parties; and
3. Giving birth.
Each test provides different results.
There are often conflicting parenting presumptions. Just because someone is not a parent by virtue of test A, are they are parent by test B? Which prevails?
It is one thing to have agreement about what is to happen with the storage, use or disposal of embryos, but what if, by agreement the ex-wife is to conceive a child through an embryo of the parties, that the ex-husband will, no matter what he wants, be deemed to be the father?
11. Even if the parties have agreed that the other party is to have ownership/use of the embryo, will your client still be liable to pay child support?
This would ordinarily be covered by parenting presumptions, but nevertheless as illustrated by the intact relationship of Tony and Julie, while Tony was happy for Julie to have a child because that was her burning desire, as sure as eggs he did not want to become a dad again with the liability to pay child support.
12. Even if your client is not a parent, will he be able to have an ongoing relationship with the child?
There are a good number of Australian cases in which the man has been assessed as being found not to be a parent as a matter of law (and therefore not liable to pay child support or to have certain presumptions as to time in their favour) but nevertheless found that it is in the child’s best interests to have an ongoing relationship with the donor – much to the chagrin of the other parties. The typical scenario has been that of lesbian couples who have a gay friend as a known donor.
Has your client considered the potential outcome of this issue? I have had clients, typically other lawyers, who have said: “Eureka! (He (she) is not a parent because of the parenting presumptions”, then left dumbfounded by me as to the impact of this issue.
The position in my backyard
Generally the position of who is a parent in Australia is clear – namely the woman who gave birth and that woman’s partner. However there are a number of conflicting parenting presumptions. I will cover below as to the ownership of gametes. Although untested, I believe that sooner or later there will be cases decided in the Family Law Courts in Australia as to the ownership, use and disposal of gametes when there has been a relationship breakdown, including that gametes are property which can be the subject of a property settlement.
As is often the case in which judges and politicians say that science is ahead of the law, it is uncertain as to who may own gametes and what use can be made of them. What happens when intended parents, or those who have become parents already, split up? Who gets to keep the gametes?
The issue of consent to use
Fertility clinics have procedures in place to obtain consents for the use of gametes. This is based at least in part on licensing conditions or statute.
Legislation as to consent
The Human Assisted Reproductive Treatment Act 2004(NZ), s.46 provides for circumstances in which donors are advised information about what might happen, for example “the availability of counselling” and “the rights given by this act to donor offspring, the guardians of donor offspring, and other people to obtain information about donors”, but there is nothing specific in the Act about withdrawal of consent or if the donor happens to be the partner of the recipient, the impact of separation, divorce and property settlement.
As a mandatory condition of their licencing, Australian IVF Units are subject to the NHMRC Guidelines. The Guidelines have a method for the provision of consent for the use of donor gametes. The closest there is in the Guidelines to the possibility of parties splitting up is in Guideline 9.1.2 which provide:
“Clinics should provide and discuss information about storage of gametes (including gonadal tissue) and/or embryos. The information should include:
· The survival rate and suitability for transfer of gametes and embryos after freezing and thawing for the particular clinic;
· The live-birth rate following the use of the thawed gametes, tissues and embryos;
· Available information about outcomes for persons conceived using stored gametes or embryos;
· Any legal or other limitations to use, including posthumous use; and
· The maximum storage time.”
Paragraph 9.4 to 9.6 set out the circumstances in which consent is obtained and when consent can be withdrawn, namely anytime:
9.4 Obtain consent from all participants in all procedures before clinical ART procedures are undertaken, clinicians must ensure that consent is obtained from all participants (and, where relevant, their spouses or partners), is informed, voluntary, competent, specific and documented, and remains current.
9.4.1 Consent should be obtained in writing, following the provision
and discussion of information about the implications of proposed
reproductive procedures, adequate time for consideration of the
information and adequate opportunities for personal preparation
(see paragraphs 9.1 to 9.3).
9.4.2 Clinics should have procedures to ensure that consent is voluntary
and free from coercion.
9.4.3 Consent forms should include the following statements:
that the participants have received the information provided
about the proposed procedures;
· that counselling by a professional counsellor has been offered;
· that participants have had explained to them the procedures
involved and the risks of complications and have had their
· that participants have had explained to them any mandatory
uses of data;
· whether or not the participants give permission for any
additional (nonmandatory) uses or disclosures of identifying
information or data collected about them;
· whether or not the participants give permission to be contacted
in the future with a request for participation in follow-up
· the arrangements for storage and disposal of gametes
· a signed statement by the supervising clinician that he or she
has provided information about the proposed procedures; and
that relevant participants consent to each proposed procedure.
9.5 Obtain consent from all participants in donated gamete or
The donation of gametes or embryos is associated with a range
of difficult ethical, social and legal considerations for participants. Clinics
must obtain a separate consent form from each participant in gamete
or embryo donation programs and their spouse or partner (if any).
9.5.1 Consent forms for the donation of gametes or embryos should
· full details of the agreed arrangements for any treatment
involving donated gametes or embryos (see Sections 6 and 7);
· an acknowledgment that each participant (and spouse or
partner, if any) has received and understood the information
provided about gamete or embryo donation;
· a statement that the gamete or embryo donor understands and
acknowledges his or her biological connection to any persons
conceived using his or her donated gametes or embryos;
· a statement giving explicit permission to make the information
specified in paragraphs 6.10 and 6.11 available to the recipients
and any person conceived through the procedure, respectively;
a description of the arrangements set out in paragraphs
6.14 and 7.3 for responsibility for the gametes or embryos
after donation; and
· provision for signature by the participant (and his or her spouse
or partner, if any).
9.5.2 Potential gamete or embryo donors and gamete or embryo
recipients should be given adequate time between provision of
information and obtaining consent to allow consideration of the complex
9.6 Recognise the right of participants to withdraw or vary
Clinics must recognise that, with the exception of some specific issues
relating to the donation of gametes and embryos (see paragraphs 6.14
and 7.3), participants have the right to withdraw or vary their consent
at any time.”
Paragraph 9.6 refers to paragraph 6.14 and 7.3. - 6.14 relates to maintaining a consistent chain of responsibility and 7.3 is also about ensuring a consistent chain of responsibility for example 7.3 provides, relevantly:
“If the embryo donors have not specified a recipient for their embryos, clinics should keep or place the embryos in storage until suitable recipients are selected by the clinic for treatment.”
In three Australian jurisdictions State legislation provides for specific regulation of IVF practices and, relevantly for this discussion, about the issue of consent.
New South Wales
The Assisted Reproductive Technology Act 2007 (NSW), s.17 provides for the giving of consent from a gamete provider in written form. The consent can be modified or revoked at any time until the gamete is placed in the body of a woman or an embryo is created using the gamete, s.18 provides that an ART provider must not use a gamete to create an embryo outside the body of a woman except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent, for which there is a maximum penalty of 400 penalty units for a person and 800 penalty units for a corporation.
Similarly there is an offence for providing ART treatment to a woman using a gamete except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.
Similarly it is an offence to export or to cause to export from New South Wales a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.
The Assisted Reproductive Treatment Act 2008 (Vic) s.16 provides:
(1) “Gametes donated by a person may be used in a treatment procedure only if the person who donated the gametes has consented to the use of the gametes in a treatment procedure of that kind.
(2) An embryo may be used in a treatment procedure only if each of the persons who donated gametes used to create the embryo has consented to the use of the person’s gametes for a treatment procedure of that kind.”
S.17 sets out the formal requirements for the consent and, critically the consent:
“Must not have been withdrawn or have lapsed when the treatment procedure takes place.”
A person who gives consent may withdraw it at any time before the procedure or action consented to is carried out. The withdrawal of consent must be in writing and needs to be given in a particular way:
“A person withdrawing a consent must give the withdrawal or cause the withdrawal to be given as soon as practicable –
(a) to the registered ART provider or doctor to whom the consent was given; or
(b) To the registered ART provider or doctor with whom the sperm, oocyte or embryo to which the consent relates is kept or stored;
(c) In accordance with the regulations.”
There is no provision in the Assisted Reproductive Treatment Regulations 2009 (Vic) for the withdrawal of consent.
The Human Reproductive Technology Act 1991 (WA), s.22 sets out the provisions for consents, which need to be in writing and can be withdrawn at any time provided the gametes have not been used or the egg or embryo has not been used.
Section 22 provides:
“ (1) For the purposes of the licence condition referred to in section 33(2)(e) —
(a) The gametes of a person shall not be used, or for such a use be received by a licensee or participant, unless —
(i) there is an effective consent, by that person, to the gametes being so used; and
(ii) the gametes are used in accordance with that consent;
(b) The gametes of a person shall not be kept in storage unless —
(i) there is an effective consent, by that person, to the storage; and
(ii) the gametes are stored in accordance with that consent;
(c) The gametes of a person shall not be used in an in vitro fertilisation procedure unless there is an effective consent, by that person, to any human egg undergoing fertilisation or human embryo thereby derived being used for a consequential purpose authorised by this Act;
(d) Where the development of an egg undergoing fertilisation or a human embryo was brought about by an in vitro fertilisation procedure it shall not be kept in storage unless —
(i) there is an effective consent, by each person from whose gametes the egg or embryo was derived, to the storage; and
(ii) the egg or embryo is stored in accordance with that consent;
(e) Where the development of a human egg undergoing fertilisation or a human embryo was brought about by an in vitro fertilisation procedure, it shall not be used for any purpose, or for such a purpose be received by a licensee or participant, unless —
(i) There is an effective consent, by each person from whose gametes the egg or embryo was derived, to the use for that purpose; and
(ia) In the case of a use outside the body of a woman, there is an effective consent to the use for that purpose by the woman on whose behalf it is being developed and her spouse or de facto partner, if any; and
(ib) In the case of implantation in the body of a woman, there is an effective consent to the implantation by the woman and her spouse or de facto partner, if any; and
(ii) The purpose is authorised by this Act; and
(iii) That egg or embryo is used in accordance with that consent, and the Code may make further provision in relation to such, or related, matters.
(2) Where a consent is given in general terms to the use or storage of human gametes separately, whether human eggs or human sperm, that consent shall be taken to relate to the use or storage of any of those eggs or sperm, and also to any human egg undergoing fertilisation or human embryo derived from the use of the human gametes, for any purpose, save that —
(a) Any such consent may be given subject to specific conditions in its terms; and
(b) Notwithstanding subsection (4) or that a human egg undergoing fertilisation or a human embryo, may have developed which is derived from the use of human gametes the subject of any particular consent, in so far as it relates to any human egg or human sperm that has not been used that consent may be varied or withdrawn, but where a human egg in the process of fertilisation, or a human embryo, has been developed from any human gametes the consent thereafter to be required is not a consent to the use of those human gametes but a specific consent relating to that particular egg undergoing fertilisation or embryo only.
(3) The terms of any effective consent may from time to time be varied or the consent withdrawn, unless subsection (4) applies, by notice given by the person who gave the consent to the person keeping the human gametes, human eggs undergoing fertilisation or human embryos to which the consent is relevant.
(4) The terms of any effective consent to the use of any human gametes, a human egg undergoing fertilisation or a human embryo cannot be varied, and such consent cannot be withdrawn, once the gametes have, or that egg or embryo has, been used.
(5) A consent to the use of a human egg undergoing fertilisation or a human embryo must specify the purposes for which the egg or embryo may be used and may specify conditions subject to which the egg or embryo shall or shall not be used.
(6) A consent to the keeping of any human gametes, a human egg undergoing fertilisation or a human embryo must —
(a) specify the maximum period of storage, if that is to be less than such limit as may be prescribed or may be determined in accordance with section 24(1)(b); and
(b) give instructions as to what is, subject to this Act, to be done with the gametes, the egg or the embryo if the person who gave the consent is unable by reason of incapacity or otherwise to vary the terms of the consent or to withdraw it, and may specify conditions subject to which the gametes, or the egg or embryo, shall or shall not remain in storage.
(7) Before a licensee gives effect to a consent given for the purposes of this Act the licensee shall ensure that each participant has been provided with a suitable opportunity to receive —
(a) Proper counselling about the implications of the proposed procedures; and
(b) Such other relevant and suitable information as is proper or as may be specifically required by the Code or directions, including an explanation of the effect of subsection (3) and subsection (4).
(8)For the purposes of this Act a consent to the use or keeping of any human gametes, a human egg undergoing fertilisation or a human embryo shall not be taken to be effective unless —
(a) It is given in writing; and
(b) Any condition to which it is subject is met; and
(c) It has not been withdrawn; and
(d)Those gametes are, or that egg or embryo is, kept and used in accordance with the consent.
(9) Where a consent required by or under this Act is not given, or is not effective, or is not complied with that matter may be a cause for disciplinary action or proceedings for an offence but does not necessarily affect the rights of any person.
It is essential that consent be properly given.
Overseas colleagues of mine have been keen to point out to me the case of Megan Jane Hooper who in 2013 pleaded guilty to one charge of document fraud in the Perth Magistrates Court. She and her husband had created several frozen embryos in 2007, and the couple had a child 2009 following IVF. In 2010 Ms Hooper wanted to have a second child but her husband opposed this. They then separated. Ms Hooper forged her husband’s signature on a Fertility Clinic consent form in 2011, giving her access to one of the frozen embryos and allowing her to proceed.
Ms Hooper was handed a conditional release order for 6 months, fined $500 and given a spent conviction.
The case highlights that except where forms are prescribed (as they are, for example, in Victoria) that it is essential that the witnessing of the consent forms be properly undertaken (e.g. notarised) and that identification has been firmly established.
Forms aren’t enough
In Groth & Banks (2013) Mr Groth and Ms Banks were in a de facto relationship but had separated. Subsequently Ms Banks suggested to Mr Groth that he supply sperm to her through an IVF clinic in Melbourne so that she could have a child. He agreed. They undertook counselling and signed the Victorian mandated form which amongst other things said that he was a donor not a parent. The couple told the clinic that they were a couple (which they were not).
Subsequently after the child was born Mr Groth went to the Family Court seeking orders concerning the child as he said he was the father of the child. Ms Banks relied on the Status of Children Act (Vic) which provided that she and she alone was the parent of the child. Mr Groth was able to rely on the extended definition of “parent” under the Family Law Act whereby he was a parent of the child.
Significantly the judge refused to consider the consent form as the consent form had been signed under State legislation which in turn had been overridden by the Federal legislation, the Family Law Act and therefore in the views of the judge the consent form was irrelevant.
But who owns the gametes?
It is now clear that sperm held at an IVF clinic can be property. If sperm can be property, can eggs and embryos can also be property?
Sperm is property
Doodeward v Spence (1908)
Mr Doodeward was in possession of a two-headed stillborn baby. The baby was born in 1868 in New Zealand. Dr Donohoe who arrived after the birth took the body away with him and preserved it with spirits in a bottle and then kept it in his surgery as a curiosity. In 1870 following his death it was sold by auction for about £36 and later came into the possession of Mr Doodeward who it appears would present it at side shows.
Mr Doodeward was prosecuted for possession of an unburied human corpse.
The two-headed stillborn baby was referred to by Justice Barton as “a dead-born foetal monster”, ‘an aberration of nature, having two heads” and “a well-preserved specimen of nature’s freaks”.
Chief Justice Griffith said:
“If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the writers called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, by entertaining no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject to, of course, to any positive law which forbids its retention under the particular circumstances.
In the present case the evidence showed the body came, not unlawfully, into Dr Donohoe’s possession, that some – perhaps not much – work and skill had been bestowed by him upon it, and that it had acquired an actual pecuniary value. Under these circumstances and in the absence of any positive law to the contrary, I think an action or life interference with the right of possession. I do not think that the Anatomy Act has any bearing on the case.”(emphasis added)
In Roche v Douglas  Master Sanderson decided that there was property in human tissue samples which had been extracted for the purposes of DNA testing:
“I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this sense it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff’s claim. There will be a considerable saving in time and cost, some of the particular facts of this case there is a compelling reason for holding the tissue samples to be property.
In the widest sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.”
That case was followed in S v Minister for Health (WA) (2008).
In Pecar v National Australia Trustees Ltd (unreported, Supreme Court of New South Wales, Bryson J, 27.11.1996) had to determine whether tissue samples of other parts of the deceased person were property. His Honour stated: R8 refers to “any property” as extended by sub. r(4) thus:
“In this rule ‘property’ includes any land and any document or other chattel whether in the ownership, possession, custody or power of a party or not.”
It is for consideration whether the tissue samples or other parts of a dead human body are property. Except in unusual circumstances, rights of ownership do not exist in the … [his Honour then cited the statement by Griffith CJ in Doodeward v Spence] this view would justify a right to retain possession of autopsy specimens, especially in this case where the human tissue is fixed in and an accretion to a paraffin block which itself is susceptible of ownership. In my opinion the pathology specimen is property within the general meaning of that term which connotes that property has an owner.
In my opinion however the word “property” in r8 as extended by subr(4) is not used so as to require that there be any right of ownership. The rule does not deal with rights of ownership but with adduction of evidence, and it was not significant for the purposes of the rule whether or not there was a right of ownership. In my opinion the autopsy samples are property within the meaning of r8.
The power in r8 is discretionary but I approach it with a general disposition favourable to attaining procedural justice by employing the powers of the Court to enable litigants to bring forward relevant evidence even if they do not have a legal right to control the disposition of that evidence. This is the ordinary approach to applications for subpoenas which are issued as of course, both for the production of documents and for the attendance of persons. Where there appear to be reasonable grounds for expecting that relevant evidentiary material may be obtained, powers such as this should be exercised; subject however to fair terms to deal with the expense or inconvenience imposed on persons who are not parties.”
In an English case, Yearworth v North Bristol NHS Trust (2009) the Court of Appeal” found there was ownership in sperm:
“In this jurisdiction developments in medical science now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise … for us the easiest course would be uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in the Doodeward case … we would have no difficulty in concluding that the unit’s storage of the sperm in liquid nitrogen at -196C was an application to the sperm of work and skill which conferred on at the substantially different attribute, namely the arrest of its swift perishability… however … we are not content to see the common law in this area founded upon the principle in the Doodeward case … which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of the work or skill which had changed its attributes… in our judgment, for the purposes of their claims to negligence, the men had ownership of the sperm which they ejaculated…”
The other issue in Yearworth was whether there was a bailment of the sperm. Bailment is essentially where someone holds property on your behalf. The Court of Appeal summarised the relevant principles of the law of bailment:
a. A bailment can exist notwithstanding that it is gratuitous;
b. Although eroded to a limited extent by principles later to be developed in relation to involuntary bailment, the basic justification of a casting duties upon a gratuitous bailee has always been the person who’s not obliged to take possession of a chattel in relation to which another person has rights and that, if he chooses to do so, he is assumes duties;
c. Thus “the obligation arises because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods” ;
d. A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of a chattel or a right thereto;
e. Reservation by the bailor of a right to require that the chattel be ultimately restored into his own possession or to his order is not necessary to contractual bailment and there is no ground for application of any different principle to a gratuitous bailment. The court then went on to reject an American decision that tissue was donated i.e. was properly capable of passing from the donors to the donees. This followed that the donors has abandoned any possessory interest in the tissue. The University in question was not a bailee but a donee. We therefore respectfully disagree with the overture remarks of the judge at first instance;
f. A gratuitous bailee assumes the duty to take reasonable care of the chattel;
g. If a gratuitous bailee holds himself out to the bailor is able to deploy some special skill in relation to the chattel, his duty is to take such care of it as is reasonably to be expected of a person with such skill.
h. We are unpersuaded that it follows from the fact that the bailment is not contractual that the liability of the gratuitous bailee must lie in tort absent of authority to the contrary of which we are unaware, we are strongly attracted to the view that his liability is sui generis (all encompassing);
i. Indeed it may be that, whether gratuitous bailer has extended, and broken, a particular promise to his bailor, for example that the chattel will be stored in a particular place or a particular way, the measure of damages may be more akin to that referable to a breach of contract than to tort.
The Court of Appeal went on to say:
“When in light of these principles, we revert to the facts of the present claims, we find as follows:
(a) The Unit chose to take possession of the sperm. Although it often stored sperm as part of the Trust’s overall provision of oncological medical services, in return for which no doubt it received public funds, any bailment of the sperm must be classified as gratuitous.
(b) The unit’s assumption of responsibility for the careful storage of the sperm was express and unequivocal:
‘We can undertake to look after [it] with all possible care’ …
(c) The Unit acquired exclusive possession of the sperm.
(d) The Unit held itself out to the man as able to deploy special skill in preserving the sperm.
(e) Analogously to its admission in relation to the claims in tort, the Trust admits that, if the Unit was a a bailee of the sperm, it was in breach of the duty of care consequent upon the bailment if the Unit extended, and broke, particular promise to the men, namely that the sperm “will be stored… at -196° C…”.
The Court of Appeal then concluded without hesitation that there was a bailment of the sperm by the men to the Unit and that, subject to the resolution of factual issues yet to be determined, “the Unit was liable to them under the law of bailment as well as under that of tort.”
Bazley v Wesley Monash IVF Pty Ltd (2010) 
Justice White in the Queensland Supreme Court was concerned with straws of sperm which were extracted from a husband of the applicant. The issue was whether the sperm was property which could form part of his estate.
Justice White held:
“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 is 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 person representatives, maintained ownership of the straws of semen and could request the return. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner in which it was held, which preserved its essential characteristics as frozen semen capable of being used. Any extra costs associated with the redelivery would be at the applicant’s expense.”
Jocelyn Edwards; Re the Estate of the late Mark Edwards (2011)
Justice Hulme of the Supreme Court to New South Wales had to consider whether to make a declaration as to whether the deceased’s wife was entitled to possession of sperm that was extracted from his body after his death. His Honour asked the question:
“What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?”
Following Doodeward, Justice Hulme stated that in that present case the removal of the sperm was lawfully carried out pursuant to orders. Work and skill was applied to it in that it had been preserved and stored. Accordingly, on this longstanding and binding authority the sperm had been removed from the late Mr Edwards is capable of being property.
His Honour stated that Bazley and the cases from other jurisdictions provide support for the conclusion of property:
“Although they are not binding, they are, collectively persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment. Yearworth shows a preparedness for the England and Wales Court of Appeal to extend the law considerably beyond Doodeward … however, the conclusion of property in the present case can be made under the High Court’s long- standing authority without any need for further exploration of the limits of the law.”
Re H, AE(No. 2)
Orders were made by the South Australian Supreme Court to remove sperm from the deceased and then to be preserved. The applicant then sought a declaration that she was entitled to possession of the sperm recovered from the deceased and an order for its release to her.
Justice Gray concluded that the applicant was able to own the sperm as property. His Honour held:
“I am of the view that work or skill has been applied to the deceased’s sperm by the preservation of it performed by Repromed. Therefore, subject to a matter which I’ll discuss later, the deceased’s sperm may be treated as property, at least to the extent that there is an entitlement to possession.”
His Honour referred to the decision Edwards; where Justice Hulme stated:
“It was not [the deceased’s] property. The authorities to which Higgins J referred, which were not doubted by the majority, support that proposition. The point of departure between the majority and Higgins J [in Doodeward] was only as to the recognition of the ‘lawful exercise of work or skill’ exception. Accordingly, upon the authority of Doodeward … as [the deceased] did not have property in his semen when he was alive, it did not form part of the assets of his estate upon his death. A second theoretical possibility was suggested by Mr Kirk and that was the property lay in the doctors and technicians who lawfully exercised the ‘work or skill’, such as was the case of Dr Donohoe in Doodewarde… however, the better view is that the doctors who removed the sperm and the doctor and technicians who then preserved and stored it did not do so for their own purposes but performed these functions on behalf of [the applicant]. In effect, they were acting as their agents and so did not acquire any proprietary rights for their own sake.
It remains to be considered whether [the applicant] herself has any entitlement. Senior Counsel put her asserted entitlement to possession, not upon the basis that the semen was part of the assets of the estate, but that as ‘incidental to a duty as Administrator in relation to the disposal of the deceased’s body, right to possession of any part thereof). But again, the authorities endorsed by the High Court in Doodeward… do not support a proposition that [the applicant’s] ‘duty’ gave her any entitlement to do as she wished other than, to use the words of Higgins J, ‘to give the corpse decent internment’. … there is, available, however, the alternative of recognising a right that extends beyond that which she would have as Administrator. The only relevance that there is in [the applicant] being the Administrator of the estate is that the views of such a person will be a relevant matter to consider in determining how the discretion should be exercised as to making the declaration sought. Obviously administrating in this case is in favour.
Subject to a consideration of various discretionary aspects … in my view [the applicant] is the only person in whom an entitlement to property in the deceased’s sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that [the applicant] is entitled to possession of the sperm.” (Emphasis added).
Justice Gray held:
“In my view, for the reasons identified by Hulme J, this is not a case where the sperm was the property of the deceased. The Repromed staff who exercised work and skill did so not for their own purposes, but performed these functions as a consequence of the orders of the Court. They were acting as agents and did not acquire any entitlement to the sperm in their own right. I also do not accept that the sperm formed part of the assets of the deceased’s estate. In substance I agree with Hulme J that the applicant is the only person in whom an entitlement to the sperm could lie. The sperm was removed on her application. In my view, the applicant has a prima facie entitlement to possession of the sperm but, for the reasons that follow, that entitlement is subject to such conditions that the court may impose in its inherent jurisdiction.”
I note that subsequently in Re H, AE (No. 3) that orders were made enabling treatment to be undertaken by Genea in the ACT.
Vallance & Marco (2012)
Ms Vallance proceeded to the Family Court seeking that she was granted ownership of frozen semen specimen of Mr J with whom she once had a relationship. Mr J had suicided. However the Family Court did not have jurisdiction because although Ms Vallance and Mr J formed a loving and committed relationship and discussed between themselves and family members the intention to marry and start a family they had not formed a de facto relationship nor had they married. Justice Watts merely said on the property point noting the case of Edwards:
“It may be that the frozen sperm specimen can be treated as property.”
Clark v Macourt (2013)
This was a decision of the High Court of Australia concerning a commercial dispute involving the sale of the St George Fertility Centre. The vendor, in the words of Justice Hayne:
“Agreed to sell certain assets of the practice, including a stock of frozen donated sperm.”
Almost 2000 straws of the sperm were not subject to warranty and were unusable. As his Honour stated:
“The appellant could not buy suitable replacement sperm in Australia but could in the United States of America. The primary Judge found that buying 1996 straws of replacement sperm from the American supplier(‘Xytex’) would have cost about $1 million at the time the contract was breached. The purchase price for the assets (including the stock of frozen donated sperm) was less than $400,000.” 
There is no doubt in the mind of Justice Hayne that sperm was stock and therefore property. Justice Keane noted that the sale deed included this statement:
“Assets means the following assets of the vendor used in or attached to the Business, being the goodwill of the vendor in respect of the Business, Records, Embryos (to the extent title in them can at law pass to the Purchaser) and Sperm but specifically excluding Plant & Equipment and any debts owed to the vendor in respect of the Business as at completion … sperm involved means all frozen sperm whether from donors, stored for patients or reserved for patients with the vendor in the Business.”(Emphasis added)
The case appeared to turn about whether the sperm was compliant or non-compliant. Justice Keane stated:
“The respondent’s contention to ultimately rest upon the Code of Practice promulgated by RTAC. The respondent relied upon cll11.9 and 11.10 of the National Health and Medical Research Council guidelines imported into the RTAC Code by clause cl7.1 of the code. These guidelines were concerned to prevent commercial trading in human sperm; and they also contemplated that practitioners were entitled to recover their reasonable expenses. The appellant denied that she had made a profit from supplying sperm, and there was no reason to doubt her evidence. The appellant, in providing ART services for a fee, cannot sensibly be said to be engaging in commercial trading in sperm for a profit.
In this Court the respondent also sought to base the contention that compliant St George sperm would have been worthless upon s.16 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (NSW)…
The Human Cloning Act was not in force at the date of the making or completion of the Deed. It was not suggested that it operated retrospectively upon the Deed. Accordingly, it does not affect the lawfulness of the Deed, or the expectations that the parties to it, or claim to enforce those expectations.
The last point to be made in relation to the first strand of the reason of the Court of Appeal is that the observations by Tobias AJA that the appellant did not obtain title to the sperm acquired from St George and that a ‘donor could always withdraw his consent to the use of his sperm at any time’, cited above, are irrelevant. There was no suggestion in the evidence that the value of the appellant’s contractual entitlements might be in any way diminished by those circumstances.”
Justices Crennan and Bell stated:
“The appellant gave evidence that Xytex Corporation… operated a business in which Xytex supplied donated sperm to buyers, which included both patients and medical practitioners.”
The appellant also gave uncontested evidence that in her business, during the period from 2002 to 2005, she used donor sperm from different local and overseas sources which included the St George sperm, her clinic’s stock and stock obtained from Cryos International Sperm Bank, Queensland Fertility Clinic, Westmead Fertility clinic and Xytex. The appellant gave evidence that she did not make a profit from patients when using donor sperm which she had purchased and that there was always a ‘buffer’ between the real cost to her and those passed on to a patient. Evidence was also given by and on behalf of the appellant of unsuccessful efforts to recruit local sperm donors through newspaper advertising in 2005, when the appellant had exhausted his stock of St George sperm which complied with the warranty. Further, evidence that a shortage of donors was occasioned in 2005 by requirements for donor identifications was not disputed.
As their Honours stated:
“It is the plaintiff’s objectively determined expectation of recruitment of expenses which is protected by an award of damages for loss of a bargain. This explains the prima facie measure of damages at common law in respect of a sale of goods…and codified subsequently in sale of goods legislation. The measure is the market price of goods at the contractual time for deliver, less the contract price (if the latter has not been paid to the seller). This is the amount of money theoretically needed to put the promisee in the position which would have been achieved if the contract had been formed. Subject to being displaced for some reason, this is the applicable measure, notwithstanding the circumstances that a buyer is a non-profit organisation, or that the buyer is constrained in a relation or market regulation and control as to the price at which the buyer can sell to a subsequent purchaser.”
Are eggs and embryos any different to sperm?
I can’t see that they have any different characteristic at all to sperm. Eggs, sperm and embryo are all transported through special means. The eggs particularly, along with sperm, are imported from the United States, such as Monash IVF does with World Egg Bank. These are consistent with the physical and actual characteristics of property.
It is clear that both eggs and embryos, like sperm will have acquired attributes differentiating them due to the lawful exercise of work or skill of doctors and technicians, for example in terms of eggs their preservation and in terms of embryos their creation and preservation, as in Yearworth regarding sperm.. If it be the case a human tissue, as seen in Roche v Douglas can be property surely both eggs and embryos can also be property.
Clearly eggs and embryos have special characteristics, including containing human DNA and the ability, in respect of an embryo, if implanted, to become a person. However an embryo is not a person. It is merely an embryo. A child is not conceived until pregnancy results.
Subject to the various licencing requirements as to donations, it would appear on its face that the owners of embryos would be the intended parent or parents and not the donor of the gametes.
I note here the view by Justice Hulme in Edwards that doctors and technicians are in effect acting as agents for intended parents and do not acquire any proprietary rights for their own sake. As Clark v Macourt shows, however, embryos can also be stock.
Could there be property settlement orders under the Family Law Act concerning sperm, eggs or embryos?
The Family Law Act 1975 (Cth), s4 defines property as meaning:
(a) “In relation to the parties to a marriage or either of them - - means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion
(b) ; or
(c) In relation to the parties to a de facto relationship or either of them - - means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.” (emphasis added)
It seems fairly clear from the case law referred to above that sperm can be property. Being in possession of something as a matter of right, in accordance with Doodeward, could mean that property possessed by that party is therefore property capable of being the subject of orders under the Family Law Act. It would therefore follow as a matter of course that embryos and eggs could also be property.
What is just and equitable: Stanford v Stanford (2012)
It is a basic requirement before the court makes any orders under the Family Law Act as to property settlement that it is just and equitable to make the order: s.79(2). What impact that section will have as to what might happen with eggs, embryo and sperm in a case involving a warring couple, having regard to the High Court decision in Stanford is not known.
As the majority judgment in Stanford v Stanford held in 2013, the court then would not chart the metes and bounds of what is just and equitable. Every case needs to be decided on its own facts. The majority set out at length the principles concerning what is just and equitable:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.
Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.
When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.
Contrary to the submissions of the husband in this Court, there may be circumstances other than a voluntary separation of the parties marking the breakdown of their marital relationship in which a court may be satisfied that it is just and equitable to make a property settlement order. For example, demonstration of one party's unmet needs that cannot be answered by a maintenance order may well warrant the conclusion that it is just and equitable to make a property settlement order. It may be that there are circumstances other than need.
As has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is "just and equitable". Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable.”
It is only a question of time before there is litigation between former spouses about the ownership of embryos. How that litigation will end up is anyone’s guess. I am aware of one case at least between former spouses when, by agreement, the wife was able to take ownership and use of frozen embryos, to the exclusion of the husband.
If there are to be deals done between former spouses regarding embryos, then the following issues may also need to be traversed:
· Parenting presumptions
· The impact on any other siblings and whether a child born through this embryo is to be treated differently;
· Mandatory licencing requirements, such as the Assisted Reproductive Technology Act 2007 (NSW);
· Navigating provisions such as s 32 of the Human Tissue Act 1983 (NSW) that ordinarily prohibits the supply of tissue for consideration and both Commonwealth and State or Territory human cloning legislation namely s 21 of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) and, as an example the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (NSW) s.16.
Harrington Family Lawyers
15 January 2015
 Stephen Page is an International Representative of the Artificial Reproductive Technologies Committee, Family Law Section, American Bar Association. Stephen is a Partner of Harrington Family Lawyers, Brisbane, Australia. He was admitted in 1987 and has been an accredited family law specialist since 1996. He has written presented and spoken extensively about surrogacy and fertility issues and is the author of the Australian Surrogacy and Adoption Blog http://surrogacyandadoption.blogspot.com.au/
 Charles P Kindregan, JR. and Maureen McBrien, Assisted Reproductive Technology: A :awyers Guide to Emerging Law in Science (2nd ed), American Bar Association (2011) at p157
 National Health and Medical Research Council, Ethical Guidelines in the use of Assisted Reproductive Technology in Clinical Practice and Research (2007).
  FamCA 430.
  HCA 45;(1908) 6 CLR 406.
  WASC 146; (2000) 22 WAR331.
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  WASC 262.
 EWCA Civ 37;  QB 1.
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  QSC 118;  2 Qd R 207.
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 NSWSC 478.
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  SASC177.
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 Re H, AE(3) SASC 116.
 SaCA 653.
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 HCA 56.
 Australia’s equivalent of the US Supreme Court
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 An offence for intentionally giving or offering valuable consideration for the supply of a human egg, human sperm or a human embryo.
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 LWV&Anor v LMH  QChC 026.
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 French CJ, Hayne, Kiefel, Bell JJ
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