Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231

Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231

The plaintiff is entitled to possession of the lawfully recovered sperm of her late husband, subject to statutory limitations; the sperm was lawfully obtained and preserved under effective court order. Transfer of the sperm to the plaintiff for storage interstate does not constitute an unlawful 'supply' under the Assisted Reproductive Technology Act 2007 (NSW) provided it is transported for storage outside New South Wales. Existing statutory regimes prohibit extraction, use, or storage of sperm/gametes in NSW without written consent, but the property recognised in the sperm vests in the plaintiff as the person at whose request skill and preservation were applied lawfully.

Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Principal Judgment / Final Orders, Following Interlocutory Relief and Declaration Sought
Outcome
Declaration granted; qualified order for transfer of sperm for interstate storage; order for destruction if not collected by a specific date.
Legal Topics
['possession of Human Tissue/gametes' 'declarations of Entitlement' 'consent to Medical Procedures' 'reproductive Technology Law' 'jurisdiction for Medical Procedures' "interpretation of 'treatment' Under Guardianship Act" 'statutory Prohibition and Exceptions Under Human Tissue Act']
['personal Property' 'civil Procedure' 'health Law'] ['possession of Human Tissue/gametes' 'declarations of Entitlement' 'consent to Medical Procedures' 'reproductive Technology Law' 'jurisdiction for Medical Procedures' "interpretation of 'treatment' Under Guardianship Act" 'statutory Prohibition and Exceptions Under Human Tissue Act']

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Procedural Posture

Principal Judgment / Final Orders, Following Interlocutory Relief and Declaration Sought

Legal Issues

  1. 1 ['Whether the plaintiff (widow) is entitled to possession of sperm extracted from her deceased husband' 'Whether possession or transfer is prohibited by the Assisted Reproductive Technology Act 2007 (NSW)' 'Lawfulness of extraction under Human Tissue Act 1983 (NSW) and relevant consent regimes' "Scope of court's parens patriae or other jurisdiction to authorise extraction from living or deceased persons" 'Characterisation of sperm as property post-extraction and preservation']

Ratio Decidendi

The plaintiff is entitled to possession of the lawfully recovered sperm of her late husband, subject to statutory limitations; the sperm was lawfully obtained and preserved under effective court order. Transfer of the sperm to the plaintiff for storage interstate does not constitute an unlawful 'supply' under the Assisted Reproductive Technology Act 2007 (NSW) provided it is transported for storage outside New South Wales. Existing statutory regimes prohibit extraction, use, or storage of sperm/gametes in NSW without written consent, but the property recognised in the sperm vests in the plaintiff as the person at whose request skill and preservation were applied lawfully.

Court Disposition

Declaration granted; qualified order for transfer of sperm for interstate storage; order for destruction if not collected by a specific date.

Orders

  • ['It is declared that the plaintiff is entitled to the possession of the sperm recovered on 28 March 2018 from the body of her late husband Joel Chapman, subject to orders 2 and 3.' 'The first defendant is ordered to deliver up possession of the said sperm to the plaintiff but only upon the plaintiff causing a...