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Queensland University of Technology Law and Justice Journal |
POST-MORTEM SPERM HARVESTING, CONCEPTION AND
THE LAW: RATIONALITY OR RELIGIOSITY?
MARETT
LEIBOFF[*]
I INTRODUCTION: CONCEIVING FAMILIES
The circumstances surrounding cases that challenge accepted conventions,
practices, and values, in particular those involving the
conception of the
family and how those families come into existence, is understandably, highly
charged. In particular, those cases
which operate at the intersection of
medicine, biology, technology, social expectation, and
religion,[1] and which could not occur
in ‘nature’,[2] cause the
most apprehension. They can only come about because of biotechnological and
medical intervention. As Dwyer observes,
‘these techniques may be desired
by the subject, but may cause wider public concern. Bioethics is therefore
increasingly concerned
with protecting the interests of society from the
individual as well as the individual from
society’.[3] Brownsword
suggests that there has been a loss of moral compass guiding individuals
(blaming postmodernism and social dislocation
among other things), which never
occurred in more than the cohesive social structures of pre-modern
society.[4] Thus, the State must
intrude in problematic cases, overriding choices of individuals where necessary.
In Australia, since the late 1990s, these cases have enabled a single
woman to access assisted reproductive technologies
(‘ART’),[5] and a
transsexual man to marry.[6] The law,
however, has been more ambivalent in the ‘sperm harvesting’
cases,[7] where women apply to the
courts to allow the removal of reproductive material from their deceased
partner, with the aim of using
this material at some later date to achieve a
pregnancy. The applications provoke sharply divided responses from the
community,
involving the nature of family, the intervention in nature itself,
and the effect on children through the circumstances of their
conception, and
the consequences of being brought up in this kind of
family.[8] The courts are, in effect,
being asked to reach decisions that are both socially controversial and morally
sensitive, in which the
state itself may be seeking to interfere in the life
choices of individuals.
As such, the courts’ decisions may accept
the role of the state in preventing individuals from pursuing their choices in
life,
and in doing so, their ability to have a family. How far the state should,
in these circumstances, interfere in the lives of individuals,
and for what
reasons, end up being law’s problem. However, these cases do not only
concern individuals, but they also involve
their broader family. The choices of
an individual are not isolated in these cases, but are relationally
driven through the family. In this mode, Lior Barshack suggests the family
needs to be seen as an autonomous jurisdiction, which
the state should be
reluctant to interfere with, because individuals derive their dignity and
identity from groupings like the family.
State intervention can be justified
for the welfare of the individual, if the integrity of the family is
considered, and the actions do not eliminate human
‘self-realisation’.[9]
Fundamentally, the ability to have a child and continue a family line (or gene
line), lies at the heart of the sperm harvesting
cases, and in this sense, forms
the zenith of self-realisation.[10]
If the family disagrees with the woman’s choice, then her actions
must be prevented by the
State,[11] but if they agree, then
her actions should not be interfered with. This conception of family is found
in the decision of Morris
J in the last of the Australian sperm harvesting
cases, YZ v Infertility Treatment Authority
(General):[12]
I should
also observe that when the Parliament refers to the interests of “the
family”... it is concerned about the interests
of a unit. I should also
add that I would regard the parents and siblings of a deceased husband to be
members of the family of that
person’s widow. In other words, the parents
and siblings of XZ [the deceased husband] have a family relationship with YZ
[the
applicant]. Further, if YZ is to give birth to a child – especially
if the child is produced using the sperm of XZ –
the parents and siblings
of XZ would be part of the relevant
“family”.[13]
In
comparison, Muir J’s decision in Baker v
Queensland[14] disregarded the
interests of the family, including the parents of the deceased fiancé.
Both families actively supported her
application. Her fiancé’s
father said that it would have meant everything for them for her to have his
son’s
children and that it was their only chance for
grandchildren.[15] There was ample
evidence he wanted a child, yet Muir J took the view that her fiancé
would not want to her have a child in these circumstances:
it must
be even more doubtful here that the procedure contemplated by the applicant
would have accorded with the wishes of the deceased.
Had he turned his mind to
the question, he would no doubt have given anxious consideration to the best
interests of the applicant
and of the child or children to be born as a result
of the proposed procedure. He would have seen the existence of such a child
or
children was capable of restricting the applicant’s ability to pass beyond
her grief and start life afresh. He would have
contemplated also the
difficulties which face a single working mother and the constraints that would
be imposed on her social life
and on her ability to enter into a new
relationship or
relationships.[16]
The
contrasting position of choice and family are starkly illustrated in these two
sets of comments, and no legal basis can adequately
explain the different
positions taken. But a conventional reading of the cases will bypass these
comments and isolate the legal
principles that derive from the case. So while
raising considerable policy, bioethical and jurisprudential debate, in a
conventional
reading of these decisions, they simply involve the law relating to
property in bodies, consent to interference with the body, and
questions
relating to the best interests of the child. Yet, following from the
contrasting positions in YZ and Baker, the Australian sperm
harvesting cases are split equally between decisions that would allow the
procedure – the access cases
- and those they would prevent it – the
no access cases. As will be seen, the assumptions and reasoning used by the
courts
conflict, and while conventional legal analysis will explain that the
cases succeed or fail on the facts and law, factual and legal
variations
inadequately explain the differing results in these cases. Instead, it will be
shown that the judge’s personal views about the applicant
and her actions, or their concern about the lack of choice or consent by her
deceased partner, inform the outcome
of the case, which can usually only be
traced through the interstices of judgments, though occasionally, these personal
views are
overtly revealed.
This kind of analysis - that judges impose
personal views into decision-making - is redolent of the position that morals
play a role
in the creation and development of the
law.[17] But it also bears the
trace of Jerome Frank’s realist assertion that judges work back from their
decisions to construct the
law, or the critical legal scholarship, which seeks
to uncover the indeterminacy of legal rules, where the courts will use legal
principles that best achieves the most desirable outcome over others. Instead,
this article takes a cultural legal studies position,
in which it will see how
the language of reason can be used to conceal personal moral viewpoints
in controversial cases like the sperm harvesting
cases.[18]
So instead of
considering this question in conventional jurisprudential terms about law,
morality and reason,[19] I will
consider the question in terms more akin to popular morality, as a trope of
religiosity located within reason, and its adoption
in the sperm harvesting
cases. This approach is characterised by Jonathan Montgomery’s argument
that the values imparted by
religion should be considered as central to
healthcare law,[20] otherwise it is
‘at risk of being transformed – moving from a discipline in
which the moral values of medical ethics ... are a central concern, to
one in which they are being supplanted by an amoral commitment to choice and
consumerism’.[21] Thus, the
moral policy found in law that initially denied Dianne Blood the use of her
husband’s sperm was overridden by an
amoral ‘market issue’
because she was allowed to export the sperm under European law, despite the
morality based legal
arguments going against
her.[22] Choice without morality,
in this view, is flawed. But this is, as Simpson suggests:
Clearly, the
introduction of sentiment, by way of theological debate, [which] had moved the
debate into a territory very different
to the one mapped out for the autonomous,
self-determined individual upon whom legal and bioethical decision-making
typically is
predicated.[23]
It is this
notion of sentiment via theology, or religiosity as a popular morality,
that is the subject of my interest here. Defined in the Oxford English
Dictionary to mean
‘religiousness, religious feeling or sentiment’
or an ‘affected or excessive religiousness’, religiosity
provides a
starting point to consider popular morality of a sort that is visceral
and appeals to the senses through emotions ranging from a sense of what is right
and proper, as found in Montgomery’s position,
to one of disgust or
revulsion, or ‘I don’t like it’. While a conventional natural
law position may be identical
to this visceral religiosity, its methodological
position is different, though the resulting outcomes will be the
same.[24] Thus, natural law’s
use of properly ordered reason by following a ‘set of principles of
practical reasonableness in ordering human life and human
community’,[25] may reach the
same conclusion, but through very different
means.[26]
So, while both
natural law and the more visceral religiosity will both see the creation of life
as an absolute good, a natural law
methodology will insist that any attempt to
create life from non-vital means, such as the taking of sperm from a deceased
man, which
involves the creation of life after death, must fail one of the basic
elements needed to create life - the requirement of vitality.
Any request by
the partner must be viewed as selfish and irrational, but perhaps may be
explained because of her grief. A decision-maker
must refuse an application to
harvest and use the sperm of her deceased partner. Indeed, any decision that
allows the procedure must be unreasonable, and the reasoning of any court
that allows the procedure must be wrong. On the other hand, the
visceral
religiosity will respond in terms of disgust, displeasure, or very simply,
‘the yuck factor’, and applications
refused because of the
decision-maker’s distaste.
In either case, to be convincing, a
sufficiently moral decision needs to be dressed within law’s parameters,
or bear some other
mark of objectivity, rather than be expressed as a moral
position.[27] Using these
techniques, such as a Hohfeldian language of
rights,[28] a sufficiently
‘legal’ outcome can be reached that accords with a personal moral
standpoint or values of the judge in
the case. In order to ascertain how this
occurs in the sperm harvesting cases, this article will juxtapose the
judges’ views
in key aspects of the cases, about the applicant, her
actions, and the consequence for any child born of the procedure, to demonstrate
how personal views enter these judgments. In other words, this article will
examine whether they conceal unstated or concealed views
about the correct
nature of post mortem reproduction, under the guise of rationality. The
conflicting decisions of the ‘sperm
harvesting’ cases provide an
extraordinary set of case studies which raise questions about the assumptions
brought to bear
in framing the legal foundation of these decisions. This
article will argue that the more strongly reliant the decision relies on the
visceral
religiosity, the more strongly reliant they are in their use of the
language of reason, as a metonymic device to conceal underlying
moral choices.
II THE CASES
Since 1998, courts in the Australian states of Queensland and Victoria
have been asked to decide if widows (and in one case, a fiancée)
can be
permitted to remove reproductive material from the bodies of their deceased
husbands, and if that material can be used by
them in an attempt to conceive a
child.[29] For a short period of
time post-mortem, viable, living sperm can be
harvested,[30] and a pregnancy
attempted using assisted reproduction technologies. These applications have met
a mixed response in a small number
of Australian cases, all of which have been
decided by single judges. Though the Queensland cases are based in the common
law and
the Victorian cases are based in the Infertility Treatment Act
1995 (Vic) (‘the Victorian legislation’), there are points of
commonality across the cases.
A The no access cases
Applications were refused in two Queensland Supreme Court decisions: the
2001 decision of Chesterman J in Re
Gray,[31] and the 2003 decision
of Muir J in Baker v State of
Queensland,[32] and in the 2005
Victorian Supreme Court decision in AB v Attorney-General (Vic)
(‘AB 2005’).[33]
In this case, while Hargrave J agreed with the principles set out in Re
Gray, the decision did provide that AB was permitted to apply to the
Infertility Treatment Authority, to export the sperm, though she
was not
permitted to use it in Victoria.
A series of principles can be found in
these cases. Re Gray[34]
provides that the court does not have jurisdiction over cases of this kind,
there is no right in a dead body other than to ensure
its burial, there is scope
for the potential application of s 236 of the Criminal Code (Qld), which
makes it a misdemeanour for any person to improperly interfere or offer
indignity to a dead body, and that the Transplantation and Anatomy Act
1979 (Qld) does not apply. If there had been any jurisdiction, the lack of
consent by the husband, the rationality of the widow and her
state of mind and
the child who has to live with the knowledge of the circumstances of their
conception would mean that the application
would be refused. In Baker v
Queensland,[35] it was held
thatcontract law cannot be used in place of property concepts in cases of this
kind. In AB 2005, neither the jurisdiction of the Supreme Court
or the Human Tissue Act 1982 (Vic) would allow removal of the tissue.
Hargrave J followed the ‘non-interference’ or
‘inviolability’
principle[36] in Re
Gray,[37] and distinguished
Atkinson J’s decision in Re
Denman.[38]
Chesterman J
had reached this position by drawing on the principles from a series of cases
concerning burial combined with the principles
of the criminal law relating to
the improper of indecent interference with a dead body or human remains:
It appears that the underlying principles of law are that those entitled
to possession of a body have no right other than the mere
right of possession
for the purpose of ensuring prompt and decent disposal. The prohibition on
interfering with a body sanctioned
by the possibility of criminal prosecution
indicates that to remove part of the body for whatever reason or motive is
unlawful. The
opinion expressed in Peirce [sic], which goes further
than English authority, is but a logical extension of
it.[39]
Chesterman J the
adopted a Hohfeldian language of right, duty and correlative as the basis on
which Mrs Gray’s application should
be assessed and refused:
The
principle clearly established, that the deceased's personal representative or,
where there is none, the parents or spouse, have
a right to possession of the
body only for the purposes of ensuring prompt and decent disposal has, I think,
the corollary [emphasis added] that there is a duty not to interfere with
the body or, to use the language found in Pierce, to violate it. These
principles are inimical to the proposition that the next of kin or legal
personal representative may remove
part of the
body.[40]
However, as will
be seen later in this article, the use of these concepts provides a metonym that
disguises his Honour’s moral
standpoint. Hargrave J in AB
2005,[41] agreed with Chesterman
J’s reasoning, but added in an additional layer to create a
‘super-added personhood’ to
the deceased person:
it is a
necessary corollary of the first two principles of law [no property in a body
and possession of the body is for prompt and
decent
burial][42] referred to by him that
there is a duty by those entitled to possession of a corpse not to interfere
with it. This reasoning is
consistent with the principle of inviolability
referred to in Marion’s case in respect of a living person. In my
view, policy and logic dictate that the inviolability principle should extend to
a corpse
in the absence of a statute regulating the extent to which violation is
permitted.[43]
His Honour
would have followed ‘Re Gray if the applicable law in Victoria was
the common law’.[44] That he
went to such lengths in a case which he held was covered by the Victorian
legislation, suggests that he sought to approve
the moral standpoint found in
Re Gray,[45] in order to
disapprove the access cases. The real sense of the moral position of these
decisions can be found in a coda to Re
Gray,[46] which Hargrave J
expressly approved and quoted.[47]
At the end of the judgment, just after holding that he would refuse any
application of this kind, Chesterman J commented that:
Artificial
reproduction is part of rapidly changing and expanding medical technology. As
science progresses the law will obviously
face frequent challenges for which
there may be no adequate precedent, although I do not myself accept that this
is such a case. It is not a proper criticism of the law that it has not
developed a specific principle applicable to the opportunities presented
by such
change. The law should not have to cater for every technological
possibility. Good sense and ordinary concepts of morality should be a
sufficient
guide for many of the problems that will arise. When they are
not the appropriate legal response should be provided by Parliament which can
properly access a wide range of information
and attitudes which can impact upon
the formulation of law that should enjoy wide community
support.[48] [emphasis
added]
While the morality underscoring the judgment is made explicit,
Chesterman J is also saying there is nothing wrong with the law as
interpreted in the case. While the final sentence appears to suggest that the
matter should be up to the legislature,
his Honour is instead saying that so
long as ‘good sense and ordinary concepts of morality’ are used,
decision-making
in these kinds of cases will be correctly made.
B The access cases
Morality, in the sense of religiosity, does not have a place in the
‘access’ cases. Instead, these decisions adopt a test
that may be
termed ‘guided
relationalism’.[49] While
they may initially allow the sperm to be harvested, they do not allow it to be
accessed immediately,[50] and
examine attitude of the family (and where applicable, both families), towards
the woman’s aim of using the deceased partner’s
sperm to conceive a
child.[51] The ‘access’
courts thus err on the side of caution.
Three of the access cases
involved this first step only, where the courts permitted the removal of the
material: the 1998 Victorian
Supreme Court decision of Gillard J in AB v
Attorney-General (Vic),[52] the
2004 decision of Coldrey J in Fields v Attorney-General of
Victoria,[53] and the Queensland
Supreme Court decision of Atkinson J in Re
Denman.[54] Only one decision
has actually allowed its use. Morris J in the Victorian Civil and
Administrative Tribunal (‘VCAT’) in December 2005, in the
case of YZ v Infertility Treatment Authority
(General),[55] allowed material
previously removed to be exported from Victoria to New South Wales, so it could
be used by the widow in her attempt
to conceive a child. The decision in YZ
adopts the tests set out in s 5 of the Victorian
legislation,[56] but in doing so,
makes certain presumptions about YZ and her actions that accords with Atkinson
J’s approach in Re
Denman.[57]
While
there are a relatively large number of cases across the two jurisdictions, they
actually form a smaller pool, because three
of the four Victorian cases affect
one woman: AB, or as she was to be known in the VCAT case, YZ. The cases in
which she was involved
span seven years, starting in 1998 with permission being
granted to remove sperm, and finally concluding in December 2005 with permission
being granted to export the sperm for its use in an ART
procedure.[58] There is no way of
knowing whether AB/YZ has been successful in achieving a pregnancy, but the
seven years it took for her to attempt
to do this indicates her strong desire to
achieve this particular pregnancy.
In deciding that YZ could now
proceed, Morris J drew a line under this series of cases, and through the
peculiar change of initials
used to define the applicant, denoted a move
from the Α ‘alpha’ (AB) to
the Ω ‘omega’ (YZ), from the beginning to the end, and
from the first and the last. The religious symbolism that underscores this
denotation marked
the passage from the initial permission to access the tissue,
to the possibility that it may be exported albeit within the context
that the
tissue should never have been removed, to the final permission to export it. It
suggests that these cases, as well, should
be removed from the legal arena. As
Morris J concluded:
ethics committees are required to deal with difficult
moral and philosophical issues which do not always permit a single answer. If
the answers were always obvious, we would not need ethics committees. Courts and
tribunals should not unreasonably confine the scope
of decisions that ethics
committees must make.[59]
On
the other hand, in Re
Gray,[60] and Baker v
Queensland,[61] Mrs Gray and Ms
Baker had lines irrevocably drawn through their ability to ever have the child
they sought, or to create or enhance
their family, despite the agreement of the
families of their deceased partners. In these cases, law was used to make
ethical and
moral decisions, which Morris J implicitly criticises in this
statement. Refusing access to the tissue meant that any further examination
of
the applicant’s choice was over.
But at another level, these
cases bear the traces of ‘unreason’. In Mrs Gray’s case,
reasons for the refusal to
allow her access to the sperm were published two
weeks after Chesterman J’s decision. She did not know the legal basis on
which the refusal was founded. In the end, the court decided it did not have
jurisdiction over the matter, yet reached a series
of conclusions why the
application must be rejected. Muir J was able to refuse her application despite
the approval of her fiancé’s
family. And while counsel had sought
to argue the case based on contract law, to distinguish it from Re
Gray,[62] Muir J did not accept
this distinction, holding that the facts were not different from Re
Gray,[63] and the application
was rejected. The decision could not be undone; once the viability of the
tissue was lost, all chance of a pregnancy
was ended. It was precisely for this
reason that Atkinson J in Re
Denman[64] allowed the tissue to
be removed. Analogous to an injunction, if the tissue was harvested, then a
later decision could be made about
its use. If the tissue was not harvested,
then the action would be lost for good.
Though Atkinson J
explained the differences in the Queensland cases on a different reading of
‘public policy
arguments’,[65] by juxtaposing
key attitudes expressed by the courts in Re
Gray,[66] and AB
2005,[67] on the one side,
and Re Denman,[68] and
YZ,[69] on the other, I will
suggest that personal, visceral attitudes towards the procedures and the nature
of family that would result,
are the key factors which guided the decisions in
the no access cases. These attitudes are revealed through the court’s
views
in four areas: the indignity to the corpse, the effect on the child, the
intention of the deceased, and the applicant’s state
of mind.
C Indignity to the corpse
The key determinate driving the no access cases was the principle of
inviolability, that there is a duty not to interfere with the
body or to violate
it, which includes the removal of any part of the body. As referred to earlier,
Hargrave J in AB 2005 approved this principle: ‘In my view,
policy and logic dictate that the inviolability principle should extend to a
corpse in
the absence of a statute regulating the extent to which violation is
permitted.’[70] But it is
how Chesterman J reached this position that provides a clear insight into
the personal sense of disquiet about the treatment of the body
in this
way:
It should also be noted that s 236 of the Criminal Code makes
it a misdemeanour for any person, without lawful justification or excuse the
proof of which lies on the accused, to improperly
or indecently interfere with
or offer any indignity to any dead body or human remains. On an indictment
prosecuting such an offence
it would no doubt be for the jury to decide what is
improper or indecent, or an indignity, but it would seem at least arguable
that removing part of the testicles of a dead man would come within the ambit of
those words ... Anybody with access to the body may help themselves to
part of it. The limitation imposed by the laws defending public decency or
s 236 of the Criminal Code appear altogether too uncertain to determine
who may and who may not plunder a corpse and for what
purposes.[71] (emphasis
added)
This is a speculative invocation of the criminal law, in order to
vilify the widow who helps herself to or plunders part of her
husband’s body. This is emotive language that clearly suggests a very
personal attitude to the application, and
does not hide behind the reasoned
basis for the refusal of access to the body that forms the principle found in
the case. It is
a stridently visceral response based on a sense of what should
properly happen to a body after death. Atkinson J in Re Denman reads the
same action very differently, seemingly as a direct response to Chesterman
J’s position:
It appears to me at least strongly arguable that
removing the testes of a dead man in order to harvest sperm could not be
seen as indecently interfering with or offering indignity to that body,
particularly when it is his widow who wishes to have that
sperm in accordance
with the keenly expressed desire of both herself and her recently deceased
husband to have children.[72]
(emphasis added)
D The effect on the child
The contrast in the two positions could not be more marked. But the key
question must relate to the circumstances of the child’s
conception, and
the effect this would have on the child itself. The no access cases make the
position clear. Though deciding that
there was no jurisdiction to allow the
procedure, if there had been, Chesterman J would have refused the application:
The interests of any child born as a result of the procedure must be of
particular importance in the exercise of the discretion.
I cannot see how it
can be said that the interests of such a child will be advanced by inevitable
fatherlessness. The very nature
of the conception may cause the child
embarrassment or more serious emotional problems as it grows up. More
significant, because the court can never know in what circumstances the child
may be born and brought up, it is impossible to
know what is in its best
interests.[73]
There is a
strong sense of disquiet that a child may be born who was conceived in these
circumstances. There are strongly visceral
responses here – how could the
child live with the circumstances of its birth? But because a child could
never be born, it would never know whether it would be angry,
embarrassed, disgusted, or happy about its birth, or would prefer not to
have
been born. No one would know unless they were born, and once living, would have
to live with the actions its mother and family.
The personal views of
individual children may be very different, and they may resent the circumstances
of their conception.
This issue was considered by Morris J, who was of
the view that the ‘fact that the child will be conceived after the death
of
one biological parent is not a sufficient reason to refuse consent to the
export of the sperm’.[74] In
noting that there was very little research on the question about the well-being
of children born in these circumstances, Morris
J drew ‘comfort from the
expressed attitude of relevant family
members.’[75] Indeed, these
factors were tested against s 5 of the Victorian legislation, which requires
that the ‘welfare and interests
of any person born is paramount’.
Morris J took as central the question whether ‘a person, to be born as a
result of
a treatment ... will be nourished, loved and
supported’.[76]
Chesterman J also hinted that being brought up by the mother in a single
parent household, through ‘inevitable fatherlessness’
presumes that
without the father as head of that family, the circumstances of its upbringing
must be unacceptable. Atkinson J in
Re Denman again answers Chesterman
J:
It is certainly the case that any child born, if that were to happen
as a result of successful posthumous reproduction, would be born
without a
father, but children have been born without fathers for a very long time ... No
doubt it is preferable for a child to have
not one but two parents, both of whom
fulfil their parental responsibilities, but many children do not have that, and
there are many
children who do extremely well in one parent families. It cannot
be thought that because the child will only have one living parent
that will
necessarily not be in its best interests, particularly when the alternative is
for the child not to exist at
all.[77]
Morris J adopted the
same view:
I am satisfied that the applicant has the will and the
capacity to provide this love and care. I am also satisfied that the child
will
have the support of others – including the immediate family of XZ –
which will enhance the child’s welfare.
In my opinion, the fact that the
child will not have a father is not a sufficient reason to refuse to consent to
the export of the
sperm. It is trite to observe that many children born
naturally do not have a father – or a loving father – yet still
live
long and happy lives.[78]
E The intention of the deceased
The views of the deceased and his intention to have a child form a
fundamental point of disagreement between the two sides of the
judicial line.
Chesterman J refused to countenance an implied notion of consent:
The
deceased did not in his lifetime indicate his consent to such a procedure. He
did not, naturally enough, ever turn his mind to
such an eventuality. While it
may be accepted that he desired another child it was a desire he wished to
consummate in his lifetime.
There is no reason to believe he wished his wife to
be impregnated
posthumously.[79]
The notion
that a child could only be conceived from the active involvement of the male
parent, is deeply imbued in this
comment.[80] It speaks of the need
for the child to be the result of the desire of the male parent, as a naturally
ordered action. On the other
hand, Morris J answered this view in these
terms:
I conclude these reasons by making this observation. In my
opinion, there is every reason to think that XZ would now want his sperm
to be
used to produce children mothered by YZ, if this is the course desired by YZ.
Most people who die accept that they cannot,
and should not, seek to rule from
the grave. Rather they leave on-going decisions to the living; especially to
the living who they
love or respect. (footnotes
removed)[81]
In reaching this
conclusion, Morris J was particularly concerned that the notion of consent must
be read in terms of how people go
about expressing choice - ‘by words or
by conduct – not by legal
instrument’.[82] In this
case, it ‘was clearly expressed and
witnessed’.[83]
F The applicant’s state of mind
Knowing what the husband thought is one thing, but the state of mind of
the applicant is also of considerable debate. In Re Gray, Chesterman J
was sceptical about the applicant’s state of mind:
The court could
have no confidence that the applicant's desire is a result of careful or
rational deliberation. Given the need for
urgent removal and the circumstances
of her husband's death the applicant must have been suffering greatly from grief
and shock.
The decision made under the effect of such emotions is one she may
well come to regret. It may not reflect her true desire or her
assessment of
what is best for herself and her
child.[84]
Chesterman J did
not contemplate a deferral of the final decision-making, clearly believing that
the decision to take the tissue from
the husband itself was
problematic.[85] In comparison, in
YZ, Morris J noted that in the seven years since here husband died, YZ
had not remarried or repartnered, and she had no wish to do so.
She did not
want to have children from an anonymous donor, but ‘wishes to have a
child, or children, using her late husband’s
sperm as she regards him as
her life partner and wants him to be the genetic father of her
children’.[86] Morris J did
not find that she was ‘motivated by grief’, and though other widows
would not take this course of action,
found ‘her decision is rational and
genuine’.[87] He had already
considered that the Ethics Committee at Sydney IVF, where the procedure would be
carried out, had investigated her
desire to have a child, and they were
satisfied about the nature of XZs
consent.[88]
These
comparisons show the extent of deeply contested divisions that exist in the
views in these decisions, which serve to highlight
the inevitable sense that the
no access cases are based on personal values that fundamentally disapprove of
the possibility of post
mortem reproduction in all its forms. But these views
are not made explicit in the legal reasoning which are extracted from the
decisions. They have only come to light by taking a different reading of the
text of the
decisions, which would otherwise be dislocated from the principles
of the case. Thus, Re Gray and AB 2005 stand for the legal
principle that the only purpose for which a body may be possessed by a spouse of
family member is to ensure its
prompt burial, and that no spouse or family
member can violate a corpse. In this sense, it appears incontrovertible,
extracted from
the other parts of the text in Re Gray. How this
principle is explained in the language of objectivity, neutrality, and reason,
while disguising the underlying attitudes
in Re Gray, forms the subject
of the next part of this article.
III DISGUISING RELIGIOSITY IN RE GRAY: HOHFELDIAN CORRELATES, RIGHTS AND DUTIES
As noted earlier in this article, the decision and legal principle is
structured as being highly reasonable, using the language of the
Hohfeldian correlates of ‘right and duty’. Hohfeld’s theory
is an exercise in philosophical pragmatism
in which fundamental legal concepts
could be identified, to then be used to facilitate the processes of judicial
reasoning.[89] I will suggest that
his Honour adopted this approach in order to sanction the decision with the
indicia of logic, objectivity and
legality, and mirrors John Finnis’
partial use of Hohfeld in order to render a moral argument against
abortion.[90] I will suggest that
the use of Hohfeld provides the metonym for reason and rationality in place of
personal viewpoints, visceral
religiosity or natural law that underscores the
decision in Re Gray.[91] In
doing so, it must be acknowledged that while Chesterman J himself did not
expressly refer to Hohfeld in this decision, the elements
of Hohfeld are
apparent in the implicit relationalism just described.
For this
reason, I want to return to consider the statement of the inviolability
principle in Re Gray:
The principle clearly established, that the
deceased’s personal representative or, where there is none, the parents or
spouse,
have a right to possession of the body only for the purposes of
ensuring prompt and decent disposal has, I think, the corollary that
there is a duty not to interfere with the body or, to use the language
found in Pierce, to violate it. These principles are inimical to the
proposition that the next of kin or legal personal representatives may remove
part of the body.[92]
Thus
the notion of right had to have some kind of real legal meaning, as opposed to
some kind of abstract notion which had no legal
significance. As has been seen,
a Hohfeldian right bears its meaning through its correlate, where another person
has a duty with respect to the right bearing person. So, where there is
no correlate of duty, it is impossible for a person to have a right.
If there
is no such right, the person may have a privilege or liberty, where the
correlate is no-right. Liberty is, in this sense, the choices we
have to do what we want without legal burden, and questions like those
concerning the
sperm harvesting cases potentially exist with out the correlative
of right, instead suggesting
liberty,[93] because the theory is
ultimately relational.[94]
So here, the duty not to interfere follows from the right to possession
of the body for burial. But how can this logically follow?
This formula is
self-referential, taking as it does the relationship between the right of
possession and a duty (to whom?) not to
interfere with the body. The only
person, as such, can be the deceased spouse, though there is no legal status of
personality, as
such, held by a deceased person, meaning the dead cannot have
rights.[95] But as Ngaire Naffine
points out, law can constitute personhood for whatever purpose it
wants.[96] However, Matthew Kramer
suggests that there is a possibility that the dead have
rights,[97] based on
‘subsuming the aftermath of each dead person's life within the overall
course of his or her
existence’:[98]
This involves acknowledging:
the continuing influence of the dead person
on other people and on the development of various events, the memories of him
that reside
in the minds of people who knew him or knew of him, and the array of
possessions which he accumulated and then bequeathed or failed
to bequeath--we
can highlight the ways in which the dead person still exists. He endures, of
course, not typically as an intact
material being but as a multi-faceted
presence in the lives of his contemporaries and successors. For a certain
period, then, he
can be morally assimilated after his death to the person he was
during his lifetime. Even if one feels that the interests of dead
people should
be given scanty legal protection, one ought to accept that any legal obligations
which do noncontingently confer protection
on those interests have thereby
conferred legal rights on the
dead.[99]
Holding aside for
one moment the possibility that Kramer’s construction of rights of the
dead would show that the ‘continuing
influence’ of the dead person
would support the actions of the widow, the continuation of personhood in death
in the no access
cases takes a very different reading of rights. In Hargrave
J’s extension of the reasoning of Re
Gray,[100] in AB 2005
the rights do not relate to the continuation of his life, but are
constructed against an amorphous sense of what is
‘right’.[101] If dead
people do not have rights, is the duty owed to the public or the State, in a
Brownswordian sense, as the holder of the interests
a community may hold in the
dead? The duty constructed is not easy to establish, and in this sense appears
to be rhetorical, as
against the whole world.
The use of these Hohfeldian
concepts, however, is expressly acknowledged in a similar US decision. The
9th Circuit US Federal Appeal
decision has some interesting
resonances with Re
Gray,[102] through its
references to the 1872 Rhode Island decision of
Pierce[103] on which
Chesterman J based the principle of inviolability. I will return to the use of
Pierce[104] as an authority
in the next part of this article, but in the context of its Hohfeldian
credentials, the case was employed to provide
an historical overview about
property interests in dead bodies in the 2002 decision in Newman v
Sathyavaglswaran.[105] That
case concerned the rights of parents whose deceased children's corneas were
removed by the Los Angeles County Coroner's office
without notice or consent,
who brought an action alleging a taking of their property without due process of
law. It was held that
the next of kin have the exclusive right to possess the
bodies of their deceased family members, thus creating a property interest,
which gave the parents rights in the corneas. The Coroner could not take the
corneas without due process of law. In the context
of explaining the nature of
common law interests in dead bodies, the majority noted that in 17th
century England, it was understood
that a person had a right to be
buried, and there was an ecclesiastical duty for a parish to bury the
person. This was the subject of examination in
Pierce,[106] and in
relation to that case,the opinion of the majority noted in a
footnote:
The logical relationship between rights and duties has been the
subject of considerable academic examination. Wesley Hohfeld famously
described
rights and duties as "jural correlatives" -- different aspects of the same legal
relation. Oliver Wendell Holmes described
rights as "intellectual constructs
used to describe the consequences of legal obligations. As he puts it, 'legal
duties are logically
antecedent to legal rights.' Holmes' description appears
particularly apt in respect to the law regarding dead bodies where duties
to
provide burial were recognized as flowing from a right of the dead, even though
"strictly speaking, ... a dead man cannot be said
to have rights."
Pierce, 10 R.I. at
239,[107] [other references
removed].
While the correlatives make sense as structured in Newman v
Sathyavaglswaran, the use of Hohfeld in Re
Gray[108], while
possible to deduce, appears to be the window dressing needed to clothe a
fundamentally moral, and viscerally religious position, in the language and
method of rationality and reason.
A Finnis and Hohfeld and the moral compass
Hohfeld has been used in this erroneous way before, as a way of
supporting a profoundly moral argument by Finnis against a claimed
right to
abortion. Melanie Williams has undertaken a critique of his use of Hohfeldian
methods, and the criticisms she raises resonate,
mutatis mutandis, in
relation to moral criticisms of sperm harvesting, and the incorrect use of
Hohfeld to disguise a moral position. Williams notes
‘it would be a
testing exercise to explore a topic such as abortion in terms of Hohfeldian
analysis’.[109] At issue is
Finnis’ adoption of Hohfeld’s correlates to ascribe the status of
‘person’ to a foetus. As
Williams points out, ‘the claim to
such status is not only weak in law, it is the very point of contention at the
core of the
moral
debate’.[110] Moreover, she
notes that Hohfeld did not consider the status of the body in his analysis of
the existence of rights.[111] She
points out that Finnis uses Hohfeld to activate his argument, but having used
his methods to claim the analytical high ground
of reason and rationality, then
shifts out of Hohfeld to impose an obligation of duty and responsibility of a
mother towards her
unborn
child,[112] based in natural law
and theological notions of feminine self-sacrifice. Williams excoriates
Finnis’ ambush of Hohfeldian
reason and rationality to reach a natural law
position. She complains:
But if the uniquely insoluble dilemma of
unwanted pregnancy can only be resolved in moral terms by the sacrifice of
feminine autonomy,
consigning her to the place of biological determinism, to the
fracturing of her development and projects, this places here in a second
order
position in the calculus of ethics, to a fatalistic, though morally uplifting,
acceptance of her lot. And, so the consolation
runs, from such self-sacrifice
may spring moral rewards unwonted and
divine.[113]
The real
reason for the decision is Re
Gray[114] is now
apparent, and it is clear that the reliance on Hohfeldian method is illusory and
is used as a metonymic device to rationalise
and reason the unstated positioning
found in the no access sperm harvesting cases. Replace the word pregnancy and
abortion with sperm
harvesting and post-mortem ART, and Chesterman J achieves
the same moral outcome that Finnis achieved. Hohfeld is used to lead to
a
natural law outcome, or religiously unambiguous decision grounded in religiosity
and personal viewpoints. The widows have a duty
and responsibility to the
deceased spouse to bury him, and not to have children post-mortem. In
Williams’ terms, the widow
has been required to sacrifice their desire for
a child, and by denying her, she will be given the opportunity, through her
sacrifice,
to enjoy the ‘morally uplifting acceptance of her lot’.
It is through the use of Hohfeld, and the principles derived from
Pierce[115] that Chesterman
J concluded that she must be prevented from accessing and then using her
husband’s sperm. But
Pierce,[116] and the other
cases on which Chesterman J based the decisions, are problematic as authorities,
and need to be considered in more
detail, that is redolent of Williams’
concerns about the weakness of Finnis’ claims about the legal status of
the foetus,
Chesterman J’s use of authorities is weakened by selectivity,
thus rendering them unreasonable, irrational, and unnatural.
B Using Pierce
Chesterman J came to use
Pierce[117] through the
dissenting decision of Higgins J in Doodeward v
Spence.[118] It must be
remembered that this case concerned the property status of a preserved,
stillborn two-headed baby. The majority held
that it was property for a range
of reasons, including its lack of human characteristics, which made it
undeserving of a Christian
burial.[119] Higgins J did not
agree, and said the preserved baby should have been buried, and not become an
object of property.[120]
It
appears that the dissenting judgment was being relied upon, because it had
apparently been approved by ‘the English Court
of Appeal [which] has
recently reaffirmed the principle stated by Higgins J in Doodeward
[sic]’:[121] Dobson v
North Tyneside Health
Authority.[122] However,
Peter Gibson LJ for the Court of Appeal did not do
this,[123] instead noting in
general terms the views of textbook writers that executors and administrators
charged with the duty of interring
the body have a right of custody and
possession of it until it is properly buried, and that if there is no duty to
bury, then there
is no legal right to possession of the body. But rather than
standing for the principle that a right to possession of a corpse must
be for
burial only, the case instead decided that the family of the deceased did not
have a right in property over her preserved
brain that had subsequently been
disposed of by the hospital. Indeed, the decision was far from convinced about
the status of the
authorities relating to the ‘no property’ rule,
noting the academic research in the field that showed the partial nature
of the
authorities in the area.
The dissenting judgment has not therefore been
approved. But Chesterman J somehow came to use the judgment as an imprimatur of
approval
to use Pierce[124]
as an authority. However, even if the dissenting judgment had been approved,
Higgins J did not rely on
Pierce[125] as an
authority, but mentioned it in passing only, along with a string of other US
cases that related to the duty to
bury:[126]
In Peirce
[sic] v Swan Point Cemetery, the Rhode Island Court, while admitting
that there was no property in a dead body in the ordinary sense, interfered by
injunction
to prevent the removal of a man’s corpse to another part of the
cemetery against the will of his daughter and her
husband.[127]
But
Chesterman J put it this principle altogether differently:
In one of the
American cases cited and apparently relied upon by Higgins J, Peirce
[sic] v Swan Point Cemetery 14 Am Rep 667 it was said:
That
there is no property right in a dead body, using the word in the ordinary sense,
may well be admitted. . . . there is a duty
imposed by the universal feelings of
mankind to be discharged by someone towards the dead; a duty, and we may also
say a right, to
protect from violation; and a duty on the parts of others to
abstain from
violation.[128]
Higgins J
accurately described the 1872 decision of the Supreme Court of Rhode Island in
Pierce, as involving the decision by a widow and the cemetery to move the
deceased’s remains.[129]
The man’s child and her husband sought to restore the remains to the lot
he was originally buried in. The court ordered that
the remains be restored to
their former place, because he had purchased the burial lot with the wish
that he be buried in it:
as the body was removed by the widow,
without the consent of the child, from a place where it was deposited by his own
wishes and
her consent, we think it should be restored to the place whence it
came ... It is not necessary to decide at present what might
have been done if
the child had assented, or what the child might do of herself. And from the
view we take of the case it is of
less consequence to whom the custody is
given.[130]
In other words,
the case was about the intention of the deceased and his burial, not about the
intrusion on a body. Nor did the case
concern the violation of a corpse.
Potter J instead commented, in general terms, about the human response to
burial. I have included
the sentences that Chesterman J left out of his quote
from the case in italics:
That there is no property right in a dead body,
using the word in the ordinary sense, may well be
admitted.[131] Yet the burial
of the dead is a subject which interests the feelings of mankind to a much
greater degree than many matters of actual
property. There is a duty
imposed by the universal feelings of mankind to be discharged by some one
towards the dead; a duty, and we may
also say a right, to protect from violation
and a duty on the part of others to abstain from violation; it may therefore
be considered as a sort of quasi property, and it would be discreditable to any
system of law not to provide a
remedy in such a
case.[132]
Potter J had
looked at the notion of the possibility of the dead having ‘rights’,
but these are something exercisable
by the family:
Now, strictly
speaking, according to the strict rules of the old common law, a dead man cannot
be said to have rights. Yet is it
common so to speak, and the very fact of the
common use of such language, and of its being used in such cases as we have
quoted,
justifies us in speaking of it as a right in a certain qualified sense,
a right which ought to be
protected.[133]
The notion
of quasi property was significant to understanding the nature of the obligation,
was also not referred to by Chesterman
J:
Although, as we have said, the
body is not property in the usually recognized sense of the word, yet we may
consider it as a sort
of quasi property, to which certain persons may
have rights, as they have duties to perform towards, it arising out of our
common humanity.
But the person having charge of it cannot be considered as the
owner of it in any sense whatever; he holds it only as a sacred trust for the
benefit of all who may from family or friendship have an interest in it, and
we think that a court of equity may well regulate it as such, and change the
custody if improperly
managed.[134]
Based on the
attitude of the family,
Pierce[135] thus stands for
the principle the relationship with the body is filial and related to family,
the sacred trust for the benefit of all who may from family or friendship
have an interest in it, and the nature of the relationships that are
concerned to ensure a proper treatment of a body. The idea that a body would be
left
unburied would offend our common humanity. There is nothing in the
judgment that, Hercules-like, a court could find to prevent the
ongoing family
interests in pursuing the filial bonds of enabling the continuation of the
family through the deceased spouse. Pierce may stand, instead, for the
proposition that such a course of action be permitted, if the family agree. If
they do not agree, then
they are free to intervene, and custody changed because
of ‘improper management’. Of course, in the sperm harvesting
cases,
the family supported, rather than rejected her position, so the family
themselves would not see the actions of the widow acting
against the rights of
the deceased.
IV CONCLUSION
Of course, this is a decision of a single judge of a US state made in
1873. But along the lines of the other cases relied upon by
Chesterman J, it
does not stand for the principle of inviolability claimed. Indeed, the
principles that emerge from
Pierce[136] can be read
very differently, to instead cherish the choices of family, of a kind
proposed by Lior Barshack,[137]
and to potentially allow that family to follow the deceased husband’s
desire to have a child.[138] But
Pierce,[139] as a
precedent, has to be considered with caution. In the US, it went on to have a
short and rocky life. And the principle for
which it really stood – the
ability of a cemetery to move remains – up until the 1920s, it was cited
in a small series
of US cases, but was generally disapproved. Its value in the
2002 decision in Newman v
Sathyavaglswaran,[140] was
historical, as Potter J had written an excellent history of the law relating to
burial. Its resurrection in Australia, in these
circumstances, was
extraordinary. What is problematic, however, is its use in Re
Gray,[141] and subsequent
adoption in AB 2005,[142]
to stand for principles never contemplated by the facts or circumstances of the
case. Its use, along with the adoption of the Hohfeldian
correlates of right
and duty, have been captured to achieve decisions that adopt religiosity, rather
than rationality, in the guiding
principles on which they are based.
Α - Ω
[*] Dr Marett Leiboff , Senior Lecturer, Law School QUT, Citizenship,
Government and Identity Research Program, Law and Justice Research
Centre,
QUT
[1] A recent collection
highlights the range of possible positions in these debates: H Kuhse and P
Singer (eds), Bioethics: An Anthology (Blackwell, 2nd ed,
2006).
[2] D Beyleveld and R
Brownsword, Human Dignity in Bioethics and Biolaw (Oxford University
Press, 2001); R Brownsword, ‘Happy Families, Consenting Couples, and
Children with Dignity: Sex Selection
and Saviour Siblings’ (2005) 17
Child and Family Law Quarterly
435.
[3] D Dwyer, ‘Beyond
Autonomy: The Role of Dignity in ‘Biolaw’’ (2003) 23 Oxford
Journal of Legal Studies 319. See also Donna Dickenson, Advisory
Document for Retained Organs Commission (undated) University of Birmingham,
Centre for the Study of Global Ethics
<http://www.globalethics.bham.ac.uk/consultancy/Retained_organs.htm>
at 2
December 2006.
[4] Brownsword,
above n 2.
[5] McBain v
Victoria [2000] FCA 1009; (2000) 99 FCR 116; Re McBain; Ex parte Australian Catholic
Bishops Conference [2002] HCA 16; (2002) 209 CLR
372.
[6] Re Kevin (Validity of
Marriage of Transsexual) [2001] FamCA 1074; (2001)
28 Fam LR 158; Attorney-General
for the Commonwealth v Kevin and Jennifer and Human Rights and Equal Opportunity
Commission [2003] FamCA 94; (2003) 30 Fam LR 1.
[7] AB v Attorney-General
(Vic) (Unreported, Supreme Court of Victoria, Gillard J, 23 July 1998); Re
Gray [2001] 2 Qd R 35; Baker v Queensland [2003] QSC 2 (Unreported,
Supreme Court of Queensland, Muir J, 6 January 2003); Re Denman
[2004] 2 Qd R 595; Fields v Attorney-General of Victoria (Unreported,
Supreme Court of Victoria, Coldrey J, 1 June 2004); AB v Attorney-General
(Vic) [2005] VSC 180 (Unreported, Supreme Court of Victoria, Hargrave J, 27 May
2005); YZ v Infertility Treatment Authority (General) [2005] VCAT 2655
(Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20 December
2005). Internationally, a string of cases of this kind have
received notoriety,
in particular the Diane Blood case in the UK. R v Human Fertilisation and
Embryology Authority; ex parte Blood [1997] 2 All ER 687, in relation to the
decision-making processes established under the Human Fertilisation and
Embryology Authority Act 1990 (UK). See for example D Morgan and R G Lee,
‘In the Name of the Father? Ex parte Blood: Dealing with Novelty and
Anomaly’
(1997) 60 Modern Law Review
840.
[8] In the appeal to the Full
Family Court, counsel for the Attorney-General argued that marriage, in the
context of the Marriage Act,
should be interpreted from a monogamistic Christian
perspective. This was rejected by the Full Family Court, which accepted a
broader
social understanding of marriage: Attorney-General for the
Commonwealth v Kevin and Jennifer and Human Rights and Equal Opportunity
Commission [2003] FamCA 94; (2003) 30 Fam LR 1, 18–21. At the time of the appeal,
Jennifer was about to give birth to a child conceived using ART. Kevin was not,
of course,
the child’s biological father, but would father the child as a
parent. In YZ v Infertility Treatment Authority (General) [2005] VCAT
2655 (Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20
December 2005) [50], Morris J noted:
‘If there is such a thing as a
perfect family, it is a loving, caring family; a family is not a perfect family
simply because
it consists of a father, a mother and children. As a society, we
must get away from stereotypes. In my opinion, the fact that any
child born as a
result of the export of the sperm the subject to this proceeding will not have a
father – or will be conceived
from the sperm of a man who is dead –
is not of major
consequence’.
[9] L
Barshack, ‘The Holy Family’ (2004) 18 International Journal of
Law Policy and the Family 214. Compare with J Laing and D Oderberg,
‘Artificial Reproduction, the ‘Welfare Principle’ and the
Common Good’
(2005) 13 Medical Law Review 328.
[10] The desire of individuals
to have children is significant for their broader family, as shown by a decision
of an Israeli court in
early 2007. The family of an Israeli soldier was given
permission to use his sperm that was removed at the time of his death, so
that
his desire to have a family could be achieved. He had no partner or
girlfriend, but they had proof that he wanted to become a father.
The family
chose a woman (who agreed to the circumstances involved) to have the child. The
Attorney-General had refused their application
to allow the woman to have the
procedure, because only a spouse could request this procedure. The court,
however, accepted that
the son wanted to have children, and the family was
successful. The soldier’s parents will not interfere in the child’s
upbringing, but will take on the role of grandparents. David Sharrock,
‘Court Clears Way for Dead Man to be a Dad’, The Australian
(Sydney), 19 January 2007, 7.
See also B Simpson, ‘Making
‘Bad’ Deaths ‘Good’: The Kinship Consequences of
Posthumous Conception’
(2001) 7 Royal Anthropological Institute
1.
[11] I have argued elsewhere
that a relational approach be taken to these cases – if the family agrees,
the procedure can proceed,
while if it refuses, the procedure must be refused: M
Leiboff, ‘Of the Monstrous Regiment and the Family Jewels’ (2005) 23
Australian Feminist Law Journal 33. Simpson, above n 10, notes that
‘The consolations that the prospect of future offspring bring encompass
extended family members
also’,
11.
[12] [2005] VCAT 2655
(Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20 December
2005).
[13] Ibid
[40]–[41].
[14] [2003] QSC
2 (Unreported, Supreme Court of Queensland, Muir J, 6 January 2003).
[15] Gregory Jason,
‘Death and the Courts End Family Dream’, The Courier-Mail
(Brisbane), 7 January 2003, 1. In Re Gray, Mrs Gray’s
father-in-law had also given permission for the removal of the tissue and
subsequent procedure: Re Gray [2001] 2 Qd R 35, 36 [6].
[16] Baker v Queensland
[2003] QSC 2 (Unreported, Supreme Court of Queensland, Muir J, 6 January 2003)
4.
[17] S Veitch, Moral
Conflict and Legal Reasoning (Hart,
1999).
[18] A Norrie, Law and
the Beautiful Soul (Glasshouse Press, 2005), considers this same question as
an attempt to create a legal sphere which is demarcated from the moral,
through
the imposition of legal form over moral
questions.
[19] Among the large
body of literature considering law and morality, the influences and
relationships between natural law and positivism
and considered in the
collection: K E Himma and B Bix (eds), Law and Morality (Ashgate,
2005).
[20] J Montgomery,
‘Law and the Demoralisation of Medicine’ (2006) 26 Legal
Studies 185.
[21] Ibid
186.
[22] Ibid
192-3.
[23] Simpson, above n 10,
7.
[24] T Honore, ‘The
Necessary Connection between Law and Morality’ (2002) 22 Oxford Journal
of Legal Studies 489.
[25]
J Finnis, Natural Law and Natural Rights (Clarendon Press, 1980) 280.
[26] Compare with M C Murphy,
Natural Law in Jurisprudence and Politics (Cambridge University Press,
2006).
[27] To test this claim,
adopting a cultural legal studies approach, I will examine what lies behind the
black letter of the judgments
and what the judgments say they are using
as reasoning. What this means is that I will not analyse the law used to justify
the decision.
[28] M Williams,
‘An Ethics Ensemble: Abortion, Thomson, Finnis and the Case of the Violin
Player’ (2004) 17 Ratio Juris
381.
[29] One other case exists
relating to a dying man: MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000)
49 NSWLR 231, in which O’Keeffe J declined to permit removal of semen from
a dying man.
[30] The
removal of the testicles and related tissue is sought in these cases in order to
access sperm. Needle aspiration or biopsy
of one or both testes or the
epididymis: A Stevens and R Silver, ‘Posthumous Extraction and Use of
Semen’ Proctor (August 2000) 23, 23-4.
[31] [2001] 2 Qd R
35.
[32] [2003] QSC 2
(Unreported, Supreme Court of Queensland, Muir J, 6 January
2003).
[33] [2005] VSC 180
(Unreported, Supreme Court of Victoria, Hargrave J, 27 May
2005).
[34] [2001] 2 Qd R
35.
[35] [2003] QSC 2
(Unreported, Supreme Court of Queensland, Muir J, 6 January
2003).
[36] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005)
[136].
[37] [2001] 2 Qd R
35.
[38] [2004] 2 Qd R
595.
[39] Re Gray [2001]
2 Qd R 35, 41 [18].
[40] Ibid 42
[20].
[41] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May
2005).
[42] Ibid
[132]-[3].
[43] Ibid [136].
Marion’s case, or Secretary, Dept of Heath and Community
Services v JWN and SMB [1992] HCA 15; (1982) 175 CLR 218, where it was confirmed that it is
unlawful to interfere with the body of a living person without their consent:
AB v Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005)
[124].
[44] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005)
[142].
[45] [2001] 2 Qd R
35.
[46]
Ibid.
[47] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005)
[136].
[48] Re Gray
[2001] 2 Qd R 35, 42 [24].
[49]
Compare with B Bennett, ‘Posthumous Reproduction and the Meanings of
Autonomy’ [1999] MelbULawRw 13; (1999) 23 Melbourne University Law Review 286; A
Reichmann Schiff ‘Arising from the Dead: Challenges of Posthumous
Creation’ (1996-1997) 75 North Carolina Law Review 901, who argue
for a different notion of relationalism, which would refuse access to
sperm.
[50] AB v
Attorney-General (Vic) (Unreported, Supreme Court of Victoria, Gillard J, 23
July 1998); Re Denman [2004] 2 Qd R 595, 598; Fields v
Attorney-General of Victoria (Unreported, Supreme Court of Victoria, Coldrey
J, 1 June 2004).
[51] AB v
Attorney-General (Vic) (Unreported, Supreme Court of Victoria, Gillard J, 23
July 1998); Re Denman [2004] 2 Qd R 595, 598.
[52] (Unreported, Supreme
Court of Victoria, Gillard J, 23 July
1998).
[53] Fields v
Attorney-General of Victoria (Unreported, Supreme Court of Victoria, Coldrey
J, 1 June 2004).
[54] [2004] 2
Qd R 595.
[55] [2005] VCAT 2655
(Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20 December
2005).
[56] Section 5 of the
Victorian legislation provides:
1. It is Parliament's intention that the
following principles be given effect in administering this Act, carrying out
functions under
this Act, and in the carrying out of activities regulated by
this Act –
(a) the welfare and interests of any person born or to be
born as a result of a treatment procedure are paramount;
(b) human life
should be preserved and protected;
(c) the interests of the family should be
considered;
(d) infertile couples should be assisted in fulfilling their
desire to have children.
2. These principles are listed in descending order
of importance and must be applied in that
order.
[57] [2004] 2 Qd R
595.
[58] Morris J ordered that
the frozen sperm could be exported to New South Wales on four conditions: the
sperm must be transferred directly
to Sydney IVF Ltd; it could only be used
under its the control and supervision; it could only be used in a treatment
procedure or
procedures using gametes of YZ to produce an embryo or embryos to
be implanted in her; and any live birth resulting from the use
of the sperm must
be reported to the Infertility Treatment Authority (Vic) and information must be
provided to the Authority concerning
the treatment procedure, the persons who
provided the gametes, the person to whom the child was born, the sex of the baby
and any
other reasonable information required by the Authority.
[59] YZ v Infertility
Treatment Authority (General) [2005] VCAT 2655 (Unreported, Victorian Civil
and Administrative Tribunal, Morris J, 20 December 2005)
[65].
[60] [2001] 2 Qd R
35.
[61] [2003] QSC 2
(Unreported, Supreme Court of Queensland, Muir J, 6 January
2003).
[62] [2001] 2 Qd R
35.
[63] Ibid.
[64] [2004] 2 Qd R
595.
[65] Re Denman
[2004] 2 Qd R 595, 597.
[66]
[2001] 2 Qd R 35.
[67] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May
2005).
[68] [2004] 2 Qd R
595.
[69] YZ v Infertility
Treatment Authority (General) [2005] VCAT 2655 (Unreported, Victorian Civil
and Administrative Tribunal, Morris J, 20 December
2005).
[70] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005)
[136].
[71] Re Gray
[2001] 2 Qd R 35, 40–41, [17],
[21].
[72] Re Denman
[2004] 2 Qd R 595, 597.
[73]
Re Gray [2001] 2 Qd R 35, 41
[23].
[74] YZ v Infertility
Treatment Authority (General) [2005] VCAT 2655 (Unreported, Victorian Civil
and Administrative Tribunal, Morris J, 20 December 2005)
[49].
[75] Ibid.
[76] Ibid
[37].
[77] Re Denman
[2004] 2 Qd R 595, 59.
[78]
YZ v Infertility Treatment Authority (General) [2005] VCAT 2655
(Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20 December
2005) [47]-[8].
[79] Re
Gray [2001] 2 Qd R 35, 41
[23].
[80] Leiboff, above n
11.
[81] YZ v Infertility
Treatment Authority (General) [2005] VCAT 2655 (Unreported, Victorian Civil
and Administrative Tribunal, Morris J, 20 December 2005)
[70].
[82] Ibid
[66].
[83] Ibid
[67].
[84] Re Gray [2001]
2 Qd R 35, 41 [23].
[85]
Leiboff, above n 11.
[86] YZ
v Infertility Treatment Authority (General) [2005] VCAT 2655 (Unreported,
Victorian Civil and Administrative Tribunal, Morris J, 20 December 2005)
[17].
[87] Ibid
[18].
[88] Ibid
[16].
[89] W N Hohfeld (ed W W
Cook), Fundamental Legal Conceptions as Applied in Judicial Reasoning
(Greenwood Press, c1919, republished
1978).
[90] Williams above n
28.
[91] [2001] 2 Qd R
35.
[92] Re Gray [2001] 2
Qd R 35, 42 [20].
[93]
Brownsword, above n 2, tests a range of possibilities about rights and
liberties, in a Hohfeldian sense, concerning the use of ones
own gametes, and
whether their use should be prevented, even if a person has consented to their
use.
[94] For this reason,
Hohfeld is criticised because the theory cannot adequately explain these kinds
of cases. Harris, for instance,
complains that correlativity implicitly
suggests that all judicial questions involve two people. He also observes that
judges will
use the language of ‘duty’, ‘right’ and so
on, where the concept is not being employed dispositively as to
an issue between
X and Y?’ Moreover, not only do judges use these terms in a
non-relational sense, but they can be caught
by the method of correlativity
which can actually result in the ‘miscuing’ of judgments. JW
Harris, Legal Philosophies (Butterworths, 2nd ed, 1997)
88, 90.
[95] N Naffine,
‘Who are Law’s Persons? From Cheshire Cats to Responsible
Subjects’ (2003) 66 Modern Law Review 346, 357,
362-3.
[96]
Ibid.
[97] M H Kramer,
‘Do Animals and Dead People Have Legal Rights?’ (2001) 14
Canadian Journal of Law & Jurisprudence 29,
31-2.
[98] Ibid
47-8.
[99] Ibid
48.
[100] [2001] 2 Qd R
35.
[101] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005) [136]. Marion’s case, or
Secretary, Dept of Heath and Community Services v JWN and SMB [1992] HCA 15; (1982) 175
CLR 218, where it was confirmed that it is unlawful to interfere with the body
of a living person without their consent: AB v Attorney-General (Vic)
[2005] VSC 180 (Unreported, Supreme Court of Victoria, Hargrave J, 27 May 2005)
[124].
[102] [2001] 2 Qd R
35.
[103] Pierce v Swan
Point Cemetery (1872) 10 R.I.
227.
[104] Ibid.
[105] [2002] USCA9 288; 287 F.3d
786.
[106] Pierce v Swan
Point Cemetery (1872) 10 R.I. 227.
[107] [2002] USCA9 288; 287 F.3d 786,
790–91.
[108] [2001] 2
Qd R 35.
[109] Williams, above
n 28, 387.
[110] Ibid
388.
[111] Ibid
389.
[112] Ibid
391-3.
[113] Ibid
393.
[114] [2001] 2 Qd R
35.
[115] Pierce v Swan
Point Cemetery (1872) 10 R.I.
227.
[116] Ibid.
[117] Ibid.
[118] [1908] HCA 45; (1908) 6 CLR 406,
422.
[119] Doodeward v
Spence [1908] HCA 45; (1908) 6 CLR 406, 416-17 (Barton
J).
[120] [1908] HCA 45; (1908) 6 CLR 406,
422.
[121] Re Gray [2001] 2 Qd R 35, 40 [16].
[122] [1996] EWCA Civ 1301; [1997] 1 WLR
596.
[123] What Peter Gibson
LJ said[1996] EWCA Civ 1301; , [1997] 1 WLR 596, 600 was:
First, as is stated in Clerk &
Lindsell (ibid), "the executors or administrators or other persons charged by
the law with the
duty of interring the body have a right to the custody and
possession of it until it is properly buried." In the present case there
were
no executors and there was no administratrix until October 1994, long after the
body of the Deceased was buried. The other
persons who are charged by the law
with the duty of interring the body include, for example, the parent of an
infant child who dies
where the parent has the means to do so (see Clarke v
London General Omnibus Co. Ltd. [1906] 2 K.B. 648 at 659 and Halsbury's Laws
4th ed. para 1017), but I am not aware that there is any authority that there is
such a duty on the next
of kin as such. If there is no duty, there is no legal
right to possession of the corpse. However even if that is wrong and the
next
of kin do have some right to possession of the body, there is no authority that
right is otherwise than for the interment or
other proper disposition of the
body.
[124] Pierce v Swan
Point Cemetery (1872) 10 R.I.
227.
[125] Ibid.
[126] Doodeward v
Spence [1908] HCA 45; (1908) 6 CLR 406,
422.
[127] Ibid
421.
[128] Re Gray
[2001] 2 Qd R 35, R 35, 40
[15].
[129] Doodeward v
Spence [1908] HCA 45; (1908) 6 CLR 406,
421.
[130] Pierce v Swan
Point Cemetery (1872) 10 R.I. 227,
242-3.
[131] In a footnote, it
was noted that by the old English law the body was not recognised as property,
but the charge of it belonged to
the church and the ecclesiastical
courts.
[132] Pierce v Swan
Point Cemetery (1872) 10 R.I. 227,
237-9.
[133] Ibid 239-40.
Hohfeld would have claimed the looseness of the use of the language of rights
here as an example why legal concepts
need to be sharply focussed on what they
actually do.
[134] Pierce v
Swan Point Cemetery (1872) 10 R.I. 227, 242-3.
[135] Ibid
227.
[136]
Ibid.
[137] Barshack, above n
9.
[138] Kramer, above n 97;
YZ v Infertility Treatment Authority (General) [2005] VCAT 2655
(Unreported, Victorian Civil and Administrative Tribunal, Morris J, 20 December
2005) [40]–[41].
[139]
Pierce v Swan Point Cemetery (1872) 10 R.I.
227.
[140] [2002] USCA9 288; 287 F.3d
786.
[141] [2001] 2 Qd R
35.
[142] AB v
Attorney-General (Vic) [2005] VSC 180 (Unreported, Supreme Court of
Victoria, Hargrave J, 27 May 2005).
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