Hosseini v Genea Limited [2021] NSWSC 1568

Hosseini v Genea Limited [2021] NSWSC 1568

The plaintiff, as statutory next of kin, executor, and beneficiary, was entitled to possession of the reproductive tissue lawfully removed from her deceased husband because no other party claimed an interest and the removal complied with statutory requirements. However, such possession does not confer 'gamete provider' status, and the Assisted Reproductive Technology Act requires the gamete provider's prior written consent for posthumous ART treatment; the plaintiff's consent alone does not suffice. The orders for possession and transport are thus made, but use in ART treatment is subject to ACT law.

Parties
Plaintiff: Sanaz Hosseini; First Defendant: Genea Limited; Second Defendant: Attorney General for New South Wales
Jurisdiction
Australia
Judgment Date
03 December 2021
Procedural Posture
Principal Judgment / Final Orders Following Hearing
Outcome
Orders made as sought; plaintiff entitled to possession and to transport the reproductive tissue sample to ACT.
Legal Topics
Ownership and Possession of Human Tissue, Rights to Possession, Assisted Reproductive Technology, Consent Requirements, Transport of Reproductive Tissue Interstate, Court's Discretion
Personal Property Administrative Law Civil Procedure Ownership and Possession of Human Tissue Rights to Possession Assisted Reproductive Technology Consent Requirements Transport of Reproductive Tissue Interstate +1 more

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Parties

Sanaz Hosseini

Plaintiff

Genea Limited

First Defendant

Attorney General for New South Wales

Second Defendant

Procedural Posture

Principal Judgment / Final Orders Following Hearing

Legal Issues

  1. 1 Is the plaintiff entitled to possession of the reproductive tissue sample removed from her late husband's body?
  2. 2 Does the plaintiff have the right to transport the tissue to the ACT for use under ACT law?
  3. 3 Does the Assisted Reproductive Technology Act 2007 (NSW) require prior written consent from the gamete provider for posthumous use?

Ratio Decidendi

The plaintiff, as statutory next of kin, executor, and beneficiary, was entitled to possession of the reproductive tissue lawfully removed from her deceased husband because no other party claimed an interest and the removal complied with statutory requirements. However, such possession does not confer 'gamete provider' status, and the Assisted Reproductive Technology Act requires the gamete provider's prior written consent for posthumous ART treatment; the plaintiff's consent alone does not suffice. The orders for possession and transport are thus made, but use in ART treatment is subject to ACT law.

Court Disposition

Orders made as sought; plaintiff entitled to possession and to transport the reproductive tissue sample to ACT.

Orders

  • The plaintiff is entitled to possession of the reproductive tissue sample recovered from the body of her late husband, Ahmad Baratikeshe on or about 1 June 2019.
  • Upon request by the plaintiff, Genea Limited is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the...