Sex Cells

Under Australian Law, human gametes have long been ruled as not being able to be property. Human gametes being reproductive cells, or referred to as sex cells (eggs and sperm). In recent years, however, Australia’s legal treatment of human gametes has begun to shift. I argue that Australian Law should adopt an approach that recognises human gametes as property to prioritize people’s autonomy over their own bodies, both in the interest of remaining relevant in an ever-evolving social climate and to ensure the ethical treatment of human beings and their reproductive cells.

Establishing, under the law, that one can have a proprietary interest in human gametes poses a range of precarious moral and ethical issues, including the risk of further commodifying the human body. The case of Doodeward v Spence developed an exception to the traditional rule against assigning proprietary interest to human corpses by way of the work or skill exception (1). Doodeward was subsequently able to regain the preserved body of the two-headed fetus he had been exhibiting for profit. The High Court of Australia reversed the decision of the New South Wales Supreme Court, which found against the fetus being considered property on appeal, based on the finding that Doodeward's use of work or skill in preserving the fetus created a proprietary interest in the corpse. This decision formed the exception to the general rule on corpses as property which is that, through the addition of work or skill in its preservation, a corpse may become property (2). 

The exception of Doodeward v Spence was later applied in the case of Re Cresswell, where in which sperm had been removed from a deceased man at the behest of his partner with the intended use in fertility treatments (3). In applying the work or skill exception, Justice Brown ruled that as work or skill was used in the preservation of the sperm, it had, therefore, become capable of being considered property (4). Even though she ultimately decided the question of the sperm being property based on the work or skill exception, Justice Brown also contemplated the guided discretion approach in her evaluation of the case. This approach comes from Roche v Douglas, which established that it is logical to consider human tissue samples as property; “it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction,” as stated by Sanderson M (5). This case addresses the issue of categorising a deceased’s genetic materials as property by using a guided discretion approach, which considers elements such as the degree of detachment, the details of the dispute, and the purpose for which the biological materials are to be used (6).

Kate Falconer argues that the “pre-/post-mortem distinction” between human materials when considering property rights is not needed, and instead advocates that the guided discretion approach should apply to human materials taken both pre- and post-mortem (7). She contends that the work or skill exception, especially in cases of sperm harvested from the deceased, raises issues on “intention and consent – representing a broader concern relating to personal autonomy” (8). In these cases, the deceased person's reproductive materials are considered “indistinguishable from a corpse awaiting disposal” (9). A proprietary interest in the body of the deceased may be established under the work or skill exception, whereby the mere use of skill in preserving the corpse is sufficient to label it as property. Falconer’s observations of the work or skill exception highlight the glaring issue of ungranted consent and autonomy over one's body after death. Considering that a person's sperm can be harvested and then used after their death, with the only caveat being that work or skill had been used in preserving it, entirely negates the deceased’s right to have control of their own bodily materials and the use of said materials.

The implications of the work or skill exception are not only exploitative of the deceased but also degrade the conception of one's natural right to life, liberty, and property (10). John Locke, in his Second Treatise of Government, established that property includes having the right to oneself as a person and to the labour one can perform. Locke’s philosophy of personal ownership emphasises the retention of one’s natural rights and freedom as an individual. It allows a person to have complete governance over themselves, unlike in Australian Law, where the dead can be considered as property to be possessed by another person and the bodily materials of the living are not generally classified as property to be freely sold, if so chosen by the person they originated from. Not only does this restrict a person’s freedom, but it also establishes that a person may not profit from their most personal productions, while another may do so.

As it stands, I believe that human gametes of the living should be considered property under Australian Law. A person should be able to retain proprietary interest in their own physical, biological material. However, the biological material of the deceased should not be considered property. Though the guided discretion approach from Roche v Douglas attempts to create a more refined and modernised framework for deciding the property rights in human materials of the deceased, I argue that it still breaches the autonomy of the individual, despite them being deceased (11). Though the approach in Roche v Douglas is far better suited to the nuances of modern medical developments and research when assessing the property rights in human materials than that of Doodeward v Spence, it still fails to remedy the issue that the deceased cannot provide or express consent. In the absence of such consent, the law should not consider the deceased's biological material as property to be used for genetic testing or fertility treatments. It seems morally repugnant that, under Australian Law, the biological materials of the deceased can be picked over by people scavenging for parts. It desecrates the body of the deceased and denigrates the sanctity of a person’s innate right to govern their body as they so choose.

Footnotes:

1 Doodeward v Spence (1908) 6 CLR 406.

2 Doodeward v Spence(1908) 6 CLR 406.

3 Re Cresswell[2019] 1 Qd R 403.

4 Re Cresswell[2019] 1 Qd R 403.

5 Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146, [24].

6 Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146, [24].

7 Falconer Kate,‘Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material’ (2019) 42(3) UNSW Law Journal 899, 916.

8 Falconer Kate,‘Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material’ (2019) 42(3) UNSW Law Journal 899, 914, 915.

9 Falconer Kate,‘Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material’ (2019) 42(3) UNSW Law Journal 899, 914.

10 John Locke, Second Treatise of Government(Hackett Publishing Company, Incorperated, 1st ed, 1980).

11 Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146.

Bibliography:

A Articles/Books:

Falconer, Kate, ‘Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material’ (2019) 42(3) UNSW Law Journal 89

Locke, John, Second Treatise of Government (Hackett Publishing Company, Incorporated, 1st ed, 1980)

B Cases:

Doodeward v Spence (1908) 6 CLR 406

Re Cresswell [2019] 1 Qd R 403

Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146