Property Rights in Frozen Semen Samples: A Legal Analysis

2. Concept of Property Problem In Bazley v Wesley Monash IVF [2010] QSC 118 the court held that frozen semen samples, stored for a fee by an assisted reproductive technology clinic after the donor's death, constituted property. Discuss in light of the historical position of the law to property in body tissue. Answer Framework The Facts: The Legal Issues: The Legal Application: Conclusion:

3. The Facts: • July 2009 - Warren Bazley diagnosed with cancer. • Both Warren Bazley and Kate Bazley showed intention to have more children verbally to Wesley Hospital Oncology. • July 2009 - Warren Bazley signed the page giving direction for the semen consistent with the guidelines that it would be disposed of. • Guidelines state that if a deceased person has NOT left signed and witnessed expression for future use of gametes (sperm or egg) clinics must NOT facilitate use to achieve pregnancy and MUST dispose of the gametes. • July 2009 - Warren Bazley provided semen sample to Wesley Monash IVF Pty Ltd for storage. • December 2009 – Warren Bazley executed a detailed will without any instruction for gametes posthumous use. • Mr Graham Aland appointed will executor and trustee. • January 2010 – Warren Bazley died without leaving a written directive about the semen. • Kate Bazley (applicant) contacted Wesley Monash IVF (respondent) to continue storage. • February 2010 Wesley Monash IVF due to lack of QLD legislation followed National Health and Medical Research Council Ethical Guidelines which edicts disposal. • Application was made to the court for an injunction to prevent the destruction of the sperm. • March 2010 – Court order to maintain the storage condition WITHOUT the destruction clause.

4. The Legal Issues: • The legal issues of this case were: • Whether or not the classification of the stored semen after the donor’s death was considered personal property. • Whether the Warren Bazley/ Wesley Monash IVF relationship was one of Bailment.

5. The Legal Application: s 8 of the Succession Act 1981 (Qld) (3): ‘A person may dispose by will of any property to which the person’s personal representative becomes entitled, in the person’s capacity as personal representative, after the person’s death.’ s 36 of the Acts Interpretation Act 1954 (Qld) ‘Property means “any legal or equitable estate or interest … in real or personal property of any description.” Bailment describes a legal relationship in common law where physical possession of personal property, or a chattel, is transferred from one person (the "bailor") to another person (the "bailee") who subsequently has possession of the property.

6. Legal Application continued … At common law, a living human body is incapable of being owned and in the case of R v Bentham [2005] UKHL 18 where a robber who used his finger as an imitation gun it was held: ‘One cannot possess something which is not separate and distinct from oneself. An unsevered hand or finger is part of oneself. Therefore, one cannot possess it.’ The historical significance is from a quote by Ulpian (c. 170  a prominent Roman jurist): ‘Dominus membrorum suorum nemo videtur’ (no-one is to be regarded as the owner of his own limbs)

7. Legal Application continued… Doodeward v Spence (1908) 6 CLR 406 (two-headed baby case) Griffith C.J. stated: generally there was no property in a human body. ‘The Supreme Court were of opinion that there can be no right of property in the dead body of a human being, and consequently that such a body cannot be the subject of an action for detinue or trover. Pring J. further expressed the opinion that there can be no right of property in a portion of a human body which has been severed from it.’ However, there was an exception where there had been work and skill on the body part involved in the litigation. ‘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. … then 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’.

8. Legal Application continued… In Yearworth v. North Bristol NHS Trust [2009] EWCA Civ 37 it was stated that the common law has categorically denied the recognition of property in a living human body: “[t]he common law has always adopted the same principle: a living human body is incapable of being owned”. Slight deviations and exceptions have been made to this common law principle. These exceptions are made in the name of science, a concession made in view of the value accorded to scientific research in the human body (which is for the betterment of human kind as a whole). This exception under the common law, is recognised and applicable to only to the human corpse, which historically cannot be a subject of property.  The English Court of Appeal had held that the work in ensuring sperm was preserved came within this exception. 

9. Conclusion Discuss in light of the historical position of the law to property in body tissue. Answer: Initially I questioned why the courts did not follow a strict interpretation of the legislative guidelines and order the disposal of the semen. Upon reflection I succumbed to the notion of the human dimension and reflected that when one is near death, maybe the last thing on one’s mind is signing a piece of paper and hopefully this is what influenced the Court in this case. As seen historically the human body which includes body parts cannot be owned. Although once a strict Common Law principle, this has seen the variances attributed to both time and technical advancements. There is also a softening of legal resistance from archaic principles. In the 1900’s it would not have been envisaged that technological advancement would see the re-attachment of severed limbs, the ability to detect and isolate micro-organisms, the concept of in vitro fertilisation and a multitude of other medical miracles. I am positive Ulpian certainly didn’t! If the strict common law rule that the human body could not be owned, thus enforcing strict limitations of a proprietary nature, then medical technology which isolate and rely on individual human body parts such as gametes, embryos, organs, stem cells and DNA sequencing for example, then these miracle advancements would not be able to benefit mankind.

10. Problem 2 Q2 PL Q&A 1-13 How has our understanding of private property shaped our understanding of the rights of citizenship of the modern state? Answer Framework • Before answering the question it is important to define the key terms of the question so that the appropriate response can be correctly addressed. • Identify key topics for discussion: • Our understanding of Private property: • Shaped our understanding • Rights of citizenship • Modern State

11. Answer How has our understanding of private property shaped our understanding of the rights of citizenship of the modern state? The concept of property has been formulated from differing dimensions such as historical, legal, political, civil, social, moral and economic with an understanding of property emerging out of these respective contexts. The definition of property that resonates comes from Felix Cohen’s ‘Dialogue on Private Property’[1] who emphasises the important concept of rights and relationship between humans and their relation to things. These rights amount to the ability to make decisions within this relationship. K Grey and S Grey[2] emphasised the social context that ‘property is socially permissible power exercised in respect of a socially valued resource.’ In our society, property relationships will confer upon the holder essentially a private right enforceable in rem, against the rest of the world including the State. In Milirrpum v Nabalco[3] (the Gove Land Rights case), Blackburn J outlined the rights to use or enjoy, to alienate and to exclude are generally the premise for proprietary interest. He didn’t state these must co-exist or deny each could be subject to qualification. In contrast, civil rights are a different property right that encourages participation in public life[4]. [1] Cohen, Felix S., "Dialogue on Private Property" (1954). Faculty Scholarship Series. Paper 4360. <https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5362&context=fss_papers>. [2] K Gray and S Gray ‘The idea of property in land law’ Land Law: Themes and Perspectives, S Bright and J Dewar (OUP 1998). [3] (1971) 17 FLR 141. [4] Brendan Edgeworth, Chris Rossiter, Pamela O’Conner, Andrew Godwin, Sackville & Neave Australian Property Law (LexisNexis Butterworths, 10th ed, 2016), 54 [1.58].

12. Answer continued… Rights of citizenship Civil rights are the rights afforded in citizenship designed to protect individuals from unfair treatment, discrimination and other infringements by governments, social organizations, and private individuals such as inequality regardless of the social or political setting.

13. Answer continued… The Modern State Some of the common mechanisms of the modern state are sovereignty, constitutionality (separation of powers), the rule of law, bureaucracy and possession of property and proprietary rights. Sovereignty has its origins strongly planted in history and we as citizens see it as the absolute authority in the political arena with the example of royal assent for all legislation being paramount. Our rights as citizens are steeled by the Constitution and whenever we feel that our rights are threatened we instinctively and initially refer to the Constitution to abrogate these threats. In Davis v Commonwealth [5] the Constitution was the basis to challenge other legislation as being unconstitutional and questioned the extent of Executive power. [5] (1988) 166 CLR 79.

14. Answer continued… Civil rights afforded in citizenship extend to the right to possession of property. In Western society this aspect of our modern state is paramount to concepts such as wealth creation, enjoyment and privacy to name but a few. The public understanding of the rights of property owners aligns with Blackstone’s statement[6] which unfortunately is further from the truth than the common perception. ‘sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’ The 2009 Traveston Crossing Dam proposal that saw the Queensland government negatively impact many property owners in the area is living proof that total exclusion is a myth. [6] William Blackstone, ‘Commentaries on the Laws of England’, <https://ebooks.adelaide.edu.au/b/blackstone/william/comment/index.html>.

15. Answer continued… native land rights The Aboriginal Land Rights (Northern Territory) Act 1976 established the basis upon which Aboriginal people in the Northern Territory could claim rights to land based on traditional occupation and put into law the concept of inalienable freehold title. Blackburn J in Milirrpum v Nabalco[7] the initial native title case ruled against full native title to exclude others under the principle of terra nullius. The Mabo Case[8] was a significant legal case in Australia that recognised the land rights of the Meriam people, traditional owners of the Murray Islands and challenged the existing Australian legal system on terra nullius and the sovereignty adverse title. In Commonwealth v Yarmirr[9] Gleeson CJ outlined the common law approach to exclusion and the impact it had within native title legislation and how a right to exclude all others from a claimed area had limitations in its application. [7] Above n 3. [8] Mabo v. Queensland (No. 2), [1992] HCA 23; (1992) 175 CLR 1. [9] [2001] HCA 56;208 CLR1.