From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: obligations@uwo.ca
Date: 24/05/2011 05:44:38 UTC
Subject: ODG: Property in gametes

Dear Colleagues;
Even though it is only a decision at trial level, I thought others might be interested (since I recall we had some interest in the Yearworth decision a while ago) in a recent decision in the NSW Supreme Court holding that a widow who had requested extraction of semen from her recently deceased husband, was entitled to possession of the semen. A very careful judgment with a good review of Australian and UK decisions: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 (18 April 2011) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152086. In the end concludes (having accepted on authority of Doodeward , and regarding Yearworth as persuasive, that the semen could be "property") that the widow's right to possession arose because there was no-one else in the world with a better claim:

[91]....[I]n my view Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm.

Regards
Neil


Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA 
ph 02 4921 7430
fax 02 4921 6931