Noone v Genea Limited [2020] NSWSC 1860

Noone v Genea Limited [2020] NSWSC 1860

Because the tissue sample had been removed pursuant to valid Court orders and cryostored, the plaintiff had acquired property in it and was entitled to possession. Applying Chapman and Edwards, release of the sample by Genea to the plaintiff or her transport agent and its safe transport to the Australian Capital...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 December 1999
Procedural Posture
Notice of Motion for Declaratory Relief Concerning Possession and Transport of Reproductive Tissue Sample for IVF Treatment / Consequential Orders
Outcome
Declarations made entitling the plaintiff to possession of the tissue sample and permitting release and transport to the Australian Capital Territory; orders made amending the defendant's name and granting liberty to apply.
Legal Topics
['removal of Sperm From Deceased Person for in Vitro Fertilisation' 'storage of Gametes' 'posthumous Use of Gametes' 'possession of Reproductive Tissue Sample' 'transport of Gametes to the Australian Capital Territory']
['human Tissue' 'assisted Reproductive Technology' 'property' 'common Law'] ['removal of Sperm From Deceased Person for in Vitro Fertilisation' 'storage of Gametes' 'posthumous Use of Gametes' 'possession of Reproductive Tissue Sample' 'transport of Gametes to the Australian Capital Territory']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Declaratory Relief Concerning Possession and Transport of Reproductive Tissue Sample for IVF Treatment / Consequential Orders

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to possession of the reproductive tissue sample collected from her late husband and stored by Genea Limited.' 'Whether Genea Limited could release the tissue sample to the plaintiff for transport to the Australian Capital Territory for use in accordance with ACT law.' 'Whether release and transport of the tissue sample to the Australian Capital Territory would breach the Assisted Reproductive Technologies Act 2007.' 'Whether it was necessary to decide whether the plaintiff became the gamete provider for the purposes of the Assisted Reproductive Technologies Act 2007.']

Ratio Decidendi

Because the tissue sample had been removed pursuant to valid Court orders and cryostored, the plaintiff had acquired property in it and was entitled to possession. Applying Chapman and Edwards, release of the sample by Genea to the plaintiff or her transport agent and its safe transport to the Australian Capital Territory would not constitute prohibited supply or export under the Assisted Reproductive Technologies Act 2007. It was unnecessary to decide the disputed construction of "gamete provider" because the relief sought was confined to possession and transport to the ACT, with any use there governed by ACT law.

Court Disposition

Declarations made entitling the plaintiff to possession of the tissue sample and permitting release and transport to the Australian Capital Territory; orders made amending the defendant's name and granting liberty to apply.

Orders

  • ['The name of the defendant be amended to "Genea Limited".' 'There be liberty to the parties and the Attorney-General of NSW to apply on short notice.' 'Subject to declarations 2 and 3, the plaintiff is entitled to possession of the reproductive tissue sample collected from her late husband, Paul Lum, on or about 20...