PROPRIETARY INTERESTS IN HUMAN BODILY MATERIAL: YEARWORTH, RECENT AUSTRALIAN CASES ON STORED SEMEN AND THEIR IMPLICATIONS: Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478

Abstract

Until recently, the law in England and Wales, Australia, and other common law countries consistently refused to recognise proprietary rights in excised human bodily material in favour of the people from whom that material came (originators1), although other people2 could obtain legal rights to possess, or control, or even sell such material, by undertaking ‘work and skill’ on it (the ‘Doodeward exception’3).4 This paper examines recent cases in which courts have recognised a limited exception to the ‘no property in human tissue’ rule. In Jonathan Yearworth and others v North Bristol NHS Trust (Yearworth),5 the Court of Appeal for England and Wales accepted that men who had deposited their semen for freezing before undertaking cancer treatment ‘owned’ the semen for the purposes of a claim in negligence because it was deposited solely for their benefit and that constituted a bailment. In Kate Jane Bazley v Wesley Monash IVF Pty Ltd (Bazley),6 the Supreme Court of Queensland applied bailment principles in holding that a widow and principal beneficiary of a deceased man was entitled to possession of his semen deposited before his death. And in Jocelyn Edwards; Re the estate of the late Mark Edwards (Edwards),7 the New South Wales Court of Appeal adopted similar reasoning in holding a widow was entitled to possession of semen removed by court order after her husband's death.