MS ENGLISH [2025] SASC 212

Applicant: MS ENGLISH Counsel: MS H VEALE WITH MR S DE CURE - Solicitor: DMAW LAWYERS Hearing Date/s: 28/04/2025, 08/05/2025, 23/12/2025 File No/s: CIV-25-004711 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. RE ENGLISH (A PSEUDONYM) [2025] SASC 212 Judgment of the Honourable Justice Gray (ex tempore) 23 December 2025 HEALTH LAW – ASSISTED REPRODUCTION REGULATION PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS This is an application by Ms English, the applicant, to remove and preserve spermatozoa from the body of her late partner, the deceased Mr English. Orders for the removal of the spermatozoa were made on 28 April 2025 on an urgent basis. The applicant now seeks declarations and orders regarding the possession and use of the spermatozoa, including an order that a third party be permitted to transfer the spermatozoa from South Australia to Queensland. Held, allowing the application and declaring the applicant entitled to use and possession of the spermatozoa: It remains appropriate to impose conditions on the use of the spermatozoa to ensure that relevant matters such as the best interest of the child are considered consistently with the approach taken in Re H, AE (No 2) [2012] SASC 177 and Re H, AE (No 3) [2012] SASC 196. Assisted Reproductive Technology Act 2024 (Qld) ss 5-7, 31; Assisted Reproductive Technology (Postponement) Regulation 2025 (Qld) reg 2, referred to. Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; Re H, AE (No 2) [2012] SASC 177, applied. Re H, AE [2012] SASC 146; (2012) 112 SASR 560; Re H, AE (No 3) [2013] SASC 196; Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478; (2011) 81 NSWLR 198; Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331, considered. -- 1 of 11 -- -- 2 of 11 -- RE ENGLISH (A PSEUDONYM) [2025] SASC 212 Civil: Application 1 GRAY J (ex tempore): This matter concerns an application for an order to remove and preserve spermatozoa from the body of the deceased, Mr English, by his partner, the applicant, Ms English. 2 On 28 April 2025, I heard the ex parte application on an urgent basis. On that occasion, I granted the application and made orders in the following terms:1 1. That spermatozoa be removed from the late [Mr English]. 2. That the process be undertaken at the Royal Adelaide Hospital. 3. That an appropriately qualified medical practitioner perform the procedure. 4. That any spermatozoa or tissue removed from the deceased be stored at an appropriate location as directed by the medical practitioner performing the procedure. 5. That any spermatozoa or tissue removed not be used for any purpose at all without an order of this Court. 6. The parties have liberty to apply at short notice. 3 The applicant now seeks the following orders:2 The Court declares that the applicant is entitled to possession and use of the spermatozoa and other tissue and genetic material (together genetic material) removed from the late [Mr English], subject to the following conditions: (1) that the Applicant engage Monash IVF Limited (or such subsidiaries or related entities of that company as she considers convenient) (Monash IVF) and cause Monash IVF to promptly take steps to arrange for the genetic material to be transported to Queensland; (2) that when in Queensland, the genetic material be stored at a suitable facility operated by Monash IVF; (3) that the genetic material not be dealt with or used in the future except: (a) in accordance with the Assisted Reproductive Technology Act 2024 (Qld) or such other regulatory requirements as may be in force in that state from time to time; or (b) in accordance with any future order of this Court; and (4) that the Applicant be responsible for the fees and charges of Monash IVF. 1 Originating Application dated 28 April 2025 (FDN 1). 2 Applicant’s Written Submissions dated 4 December 2025 (FDN 18) (‘AWS’). -- 3 of 11 -- [2025] SASC 212 Gray J 2 4 My reasons for making the initial orders and orders of a similar nature to the additional orders sought are as follows. Background 5 The deceased died on 27 April 2025, following an accident in a motorcycle race.3 At the time, the applicant was pregnant with the couple’s first child. 6 After the deceased’s death, the applicant approached the Court to seek orders for the preservation of genetic material. The application for the preservation orders was brought on 28 April 2025. The application was listed on an urgent basis and heard and determined within two hours of the application being brought. The order of the Court was sealed shortly later. The order was made in circumstances of significant urgency. 7 I was satisfied that in the making of the order on 28 April 2025, that such an order was within the inherent jurisdiction of this Court, particularly having regard to the decision of this Court in Re H, AE.4 In the circumstances in which the application was brought, the making of the order was justified as the order sought the preservation of the subject matter of the proceedings. 8 In my view, applying ordinary principles relating to the preservation of subject matter of the proceedings, there was sufficient material before the Court to grant the order made on 28 April 2025. There was no suggestion that the making of that order would cause injury to any party. 9 The applicant was born on 17 August 1995. She was the de facto partner of the deceased who was born on 10 October 1994. Both the applicant and the deceased ordinarily reside in Queensland. The applicant deposes to having known the deceased for most of her life, but they became closer friends in 2009 when they were in Year 9 at school together. The applicant deposes that she started dating the deceased in 2013 and that they have been together since that time. They commenced living together in 2016 and became engaged in September 2024. 10 At the time of the deceased’s death on 27 April 2025, the applicant was four months pregnant with her first child to whom she has now given birth. The applicant deposed to her intention to have more children and also as to the intentions of the deceased in that regard. The applicant sought the preservation order on an urgent basis so as to preserve her ability to have another child and to provide her future child with a sibling. The applicant deposes as to having discussed the application with the deceased’s other family members, who supported the making of the order. 11 This Court also has before it an affidavit from the sister of the deceased who deposes to her support and that of her family in relation to the application brought 3 Affidavit of Ms English affirmed 28 April 2025 (FDN 2) at 2, [5]. 4 Re H, AE [2012] SASC 146; (2012) 112 SASR 560 (Gray J). -- 4 of 11 -- [2025] SASC 212 Gray J 3 by the applicant.5 Submissions were also made that confirmation had been provided to the doctor seeking to perform the procedure by Acting State Coroner Kereru that Dr Reid was free to access the body of the deceased to withdraw the spermatozoa. I was also informed that the Attorney-General had been served with the application and took no position. At the further hearing of this matter, neither the Coroner nor the Attorney-General sought to be heard or to make any submissions. 12 On 28 April 2025, the procedure to extract the genetic material was performed by Dr Sally Reid. Dr Sally Reid directed that the genetic material be stored at Repromed.6 The genetic material has been stored at Repromed since that date. 13 Dr Leanne Pacella-Ince is the Operations Manager (SA/NT) for Repromed, and she is also a senior executive at Repromed’s parent company, Monash IVF Limited (‘Monash IVF’).7 Dr Pacella-Ince provided evidence that Dr Reid performed the procedure to extract genetic material in the presence of two embryologists employed by Repromed. The medical records maintained by Repromed are deposed to by Dr Pacella-Ince as indicating that, having retrieved the genetic material, the testicular tissue was placed in an IVF-grade laboratory container which contained a standard, commercial grade IVF culture medium, the function of which was to preserve the sample whilst it was transported to Repromed’s laboratory. 14 Following transport of the sample to the laboratory by the two embryologists, the tissue sample was processed at the laboratory and placed in storage vessels which are called ‘straws.’ The straws are capable of being cryopreserved, that is, frozen. After processing and prior to the tissue being loaded into the straws in readiness for cryopreservation, the sample was assessed under a microscope to determine if there was any viable sperm present, which there was. After the freezing process was completed, the straws were placed into one of Repromed’s liquid nitrogen storage tanks. Dr Pacella-Ince also deposes to the way in which records of the chain of custody of tissues are maintained by Repromed and the process that is undertaken to securely remove and transport the samples, if required, to another state. 15 Evidence was also provided to this Court from Ms Fiona Ferrier, an employee of Monash IVF based in Queensland with responsibility for quality, risk and compliance issues. She deposed to the steps that Repromed would take upon receipt of the genetic material in Queensland to ensure compliance with the laws of Queensland in relation to the use of the material.8 5 Affidavit of Renae Ferris affirmed 28 April 2025 (FDN 19) at 2, [8]. 6 Affidavit of Sally Mara Reid affirmed 7 May 2025 (FDN 8) at 2, [7]. 7 Affidavit of Dr Leanna Pacella-Ince affirmed 26 September 2025 (FDN 16) at 2, [3]. 8 Affidavit of Fiona Ferrier affirmed 29 September 2025 (FDN 15) at 2-3, [7]-[9]. -- 5 of 11 -- [2025] SASC 212 Gray J 4 16 Evidence was also provided from Dr Benjamin Frederick Kroon, a specialist obstetrician and gynaecologist who specialises in fertility and reproductive endocrinology. Dr Kroon is the treating practitioner of the applicant in Queensland.9 Dr Kroon opined as to the suitability of the applicant in relation to the use of the genetic material for in vitro fertilisation treatment and also as to the manner in which he would ensure her treatment, including the use of any genetic material, was undertaken wholly in the state of Queensland and strictly in accordance with the laws of Queensland, including the requirements of s 31 of the Assisted Reproductive Technology Act 2024 (Qld) (‘ART Act’) in the event that that section had, by the time of treatment, commenced.10 Dr Kroon indicated it was not likely that the applicant would be ready to commence treatment until such time as the ART Act had commenced, and it is his practice to ensure that any genetic material is used only after approval has been given by an independent review body as required by the laws of Queensland, which I refer to below. Consideration 17 As Justice T Gray held in Re H, AE (No 2), historically, at common law, property rights in a human body have not been recognised, however, this general rule has been modified over time.11 In Doodeward v Spence (‘Doodeward’), Griffith CJ, with whom Barton J agreed, made the following remarks:12 It is idle to contend in these days that the possession of a mummy, or of a prepared skeleton, or of a skull, or other parts of a human body, is necessarily unlawful; if it is, the many valuable collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies, were formed and are maintained in violation of the law. In my opinion there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction. If the requirements of public health or public decency are infringed, quite different considerations arise. To apply these principles to the present case. Neither public health nor public decency is endangered by the mere preservation of a perhaps unique specimen of malformation. Public decency may, perhaps, be offended by the public exhibition of such an object. But the fact that an object may not be publicly exhibited affords no criterion for determining the lawfulness of the possession of that object. In my opinion it is not contra bonos mores to retain such a specimen unburied. If one medical or scientific student may lawfully possess it, he may transfer the possession to another. Nor can the right of possession be limited to students. The manner of use may be controlled, but the possession is not of itself unlawful. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body 9 Affidavit of Dr Benjamin Frederick Kroon affirmed 18 September 2025 (FDN 13) at 2, [1]-[4]. 10 Affidavit of Dr Benjamin Frederick Kroon affirmed 18 September 2025 (FDN 13) at 2-3, [7]. 11 Re H, AE (No 2) [2012] SASC 177 at [46] (Gray J). 12 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 at 413-414 (Griffith CJ, Barton J agreeing). -- 6 of 11 -- [2025] SASC 212 Gray J 5 or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances. 18 Reference may also be had to the decision in Roche v Douglas13 in which it was held that there was property in human tissue samples which had been extracted for the purposes of DNA testing. Master Sanderson in that case observed:14 Having given careful consideration to all of the cases I have mentioned and to the many learned articles on the subject, I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this case it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff's claim. There will be a considerable saving in time and cost, so on the particular facts of this case there is a compelling reason for holding the tissue samples to be property. In the wider sense, 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. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result. 19 A further authority that was considered by Gray J in Re H, AE (No 2)15 was the decision of R A Hulme J in Jocelyn Edwards; Re the Estate of the late Mark Edwards.16 In that case his Honour applied Doodeward. Relevantly, for the present case, R A Hulme J found that spermatozoa removed from the deceased in that case was capable of being property because17 [w]ork and skill was applied to it in that it has been preserved and stored. Accordingly, on this long standing and binding authority the sperm removed from the late Mr Edwards is capable of being property. 20 Having considered the decisions referred to above and numerous other authorities, Gray J concluded that the applicant had a prima facie entitlement to possession of the spermatozoa, but that entitlement was subject to such conditions that the Court may impose in its inherent jurisdiction. His Honour held that, given the circumstances in which the sperm was extracted from the body of the deceased in that case by order of the Court, and that the Court exercised its jurisdiction to authorise the preservation of the sperm, and because authorisation was sought from 13 Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331 (Master Sanderson). 14 Roche v Douglas [2000] WASC 146; [2000] 22 WAR 331 at 338-9, [23]-[24] (Master Sanderson). 15 Re H, AE (No 2) [2012] SASC 177 at [52]-[53] (Gray J). 16 Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478; (2011) 81 NSWLR 198 at 213, [82] (R A Hulme J). 17 Jocelyn Edwards; Re the Estate of the late Mark Edwards [2011] NSWSC 478; (2011) 81 NSWLR 198 at 213, [82] (R A Hulme J). -- 7 of 11 -- [2025] SASC 212 Gray J 6 the Court for the creation of life, those circumstances compelled the conclusion that the Court in its inherent jurisdiction retains control of the use of the sperm. His Honour went on to note that it was in that way that the paramount interests of the child can be properly addressed and protected.18 21 In this case, the applicant emphasises that permission is only sought to move the spermatozoa to Queensland, where she lives, with the consequence that any decision about its future use will be made under the regulatory regime in Queensland. As the applicant submitted, Queensland has a new regulatory regime specifically enacted to manage posthumous sperm retrieval. The relevant legislation, the ART Act, was enacted in 2024, and although some of the sections of that legislation have come into effect already, absent any further proclamation, the legislation in its entirety will commence operation by 19 September 2026.19 The applicant submits that it follows that it is not necessary in this case for the Court to make a sophisticated or detailed assessment of the best interests of any child who may be conceived from that genetic material. The reason for this is that such an assessment will be consequent upon the provisions of the Queensland regime, which it was submitted is likely to come into operation prior to any time at which it was proposed that the spermatozoa would be used. That scheme, once operational, includes a requirement that an independent review body consider a number of matters prior to use of a gamete retrieved from a deceased or unresponsive person. One of these matters is the best interests of the child. 22 Section 31 of the ART Act provides a code for the way in which gametes which are retrieved from deceased persons are to be dealt with. That section is in the following terms: (1) An ART provider may use a gamete retrieved from a deceased or an unresponsive person under this division in an ART procedure for the person’s spouse if its use has been authorised by an independent review body under this section. (2) The independent review body is a body— (a) that is constituted by 1 or more persons who are not engaged by the ART provider in providing ART services; and (b) that complies with any requirement prescribed by regulation. (3) The independent review body must consider the following matters when deciding whether to authorise the use of the retrieved gamete in an ART procedure— (a) whether the spouse has the capacity to consent to the procedure; (b) whether the spouse has undertaken appropriate counselling; (c) the best interests of any child born as a result of the procedure, including— 18 Re H, AE (No 2) [2012] SASC 177 at [62] (Gray J). 19 Assisted Reproductive Technology (Postponement) Regulation 2025 (Qld) reg 2. -- 8 of 11 -- [2025] SASC 212 Gray J 7 (i) whether the spouse has the capacity to provide for the child’s emotional, intellectual and other needs; and (ii) whether the child is likely to have safe and stable living arrangements; (d) any other matter the independent review body considers appropriate. (4) A gamete that is retrieved from a deceased or an unresponsive person may be stored by the ART provider until the independent review body decides whether to authorise the use of the retrieved gamete. 23 “ART Provider” is defined in the legislation to mean “a person who provides an ART Service”;20 24 In turn, “ART Service” means: (a) an ART procedure; (b) the storage of gametes or embryos for use in an ART procedure; (c) obtaining a gamete from a gamete provider for use in an ART procedure.”; and21 25 “ART Procedure” includes “any medical treatment or other procedure that procures, or attempts to procure, pregnancy in a person other than by sexual intercourse.22 26 Whilst I accept that various safeguards are put in place pursuant to the Queensland legislation, should that come into effect, such that determination of the appropriate use of the spermatozoa will be assessed pursuant to that statutory regime, I also consider that it would be appropriate for the reasons set out by Gray J in Re H, AE (No 2) and Re H, AE (No 3) to impose similar conditions on the use of the sperm to those imposed by Gray J. I accept the reasoning of Gray J in Re H, AE (No 2) and Re H, AE (No 3) and the finding that this Court in its inherent jurisdiction retains control of the use of the sperm. It follows that it is appropriate that the conditions imposed appropriately limit the use of the sperm and do so in a way that ensures that the paramount interests of the child can be properly addressed and protected. Conclusion and orders 27 I allow the application. I consider it appropriate to make an order referring to the applicant by a pseudonym so as to protect the identity of any child affected by these orders. I grant liberty to the applicant to apply in relation to any further non-publication order. I make declarations and orders in the following terms to allow the applicant possession and use of the spermatozoa the subject of the within application: 20 See Assisted Reproductive Technology Act 2024 (Qld) s 7. 21 See Assisted Reproductive Technology Act 2024 (Qld) s 6. 22 See Assisted Reproductive Technology Act 2024 (Qld) s 5. -- 9 of 11 -- [2025] SASC 212 Gray J 8 IN THIS DECLARATION AND ORDER A. “Spermatozoa” is the spermatozoa and/or tissue removed from the late Mr [English] and as at the date of this Order is held by Repromed, pursuant to the Order of this Court made in this Action on 28 April 2025. B. “Repromed” is the trading name of Adelaide Fertility Centre Pty Ltd operating from 180 Fullarton Road, Dulwich SA 5065. C. The “Monash IVF Clinic” is a fertility clinic operated by Monash IVF Limited from premises at Level 1, Leichhardt Court, 55 Little Edward Street, Spring Hill QLD 4000. THE COURT ORDERS AND DECLARES 1. The applicant shall be referred to by the pseudonym, Ms English. 2. The applicant is entitled to possession and use of the Spermatozoa subject to the following conditions: 2.1 Repromed is to transfer directly the Spermatozoa to the Monash IVF Clinic in Queensland on the applicant’s written direction. 2.2 On receipt of the written direction, Repromed shall within 30 days take such steps as necessary to deliver the Spermatozoa to the Monash IVF Clinic. 2.3 The applicant pay the costs of such transfer. 2.4 Within 7 days of the transfer of the Spermatozoa, the applicant is to file an affidavit notifying this Court of the transfer. Following that notification, Order 4 of the orders of 28 April 2025 (FDN 4) is discharged. 2.5 The Spermatozoa must be used only under the control and supervision of a registered medical practitioner of the Monash IVF Clinic or any registered medical practitioner consulting at the Monash IVF Clinic. 2.6 The Spermatozoa upon being received by the Monash IVF Clinic will be stored at a suitable facility operated by Monash IVF Limited within Queensland. 2.7 The Spermatozoa must only be used in a treatment procedure or procedures using the Spermatozoa to produce an embryo or embryos to be implanted in the applicant. 3. The Spermatozoa will not be dealt with or used in the future except: 3.1 after 20 September 2026 when s 31 of the Assisted Reproductive Technology Act 2024 (Qld) has come into effect, and the Spermatozoa may only be dealt with or used in accordance with the terms of the Assisted Reproductive Technology Act 2024 (Qld) as assented to by the Governor of Queensland on 19 September 2024; or, 3.2 in accordance with any future order of this Court. 4. At the completion of any such treatment procedure or procedures: -- 10 of 11 -- [2025] SASC 212 Gray J 9 4.1 The Monash IVF Clinic is to appropriately store any unused Spermatozoa until further order; and 4.2 the applicant is to seek further directions or order from this court concerning any unused Spermatozoa or embryos created by treatment procedure or procedures. 5. That the applicant will be responsible for the fees and charges of Repromed and Monash IVF associated with the above orders. 6. Liberty to apply. 28 These orders contemplate that in the event that the Assisted Reproductive Technology Act 2024 (Qld) does not come into effect in the form which received assent on 19 September 2024, or in the event that the legislation is amended, then a further application will need to be made to this Court. The reason for this form of order is that no consideration has been given by this Court to the matters referred to by Gray J in Re H, AE (No 2) and Re H, AE (No 3), including the best interests of the child. No consideration has been given to these matters because the Assisted Reproductive Technology Act 2024 (Qld) provides for these matters to be considered by the independent review body established under that Act. The limitation on the use of the spermatozoa provided for by these orders seeks to ensure that these matters are given appropriate consideration. The applicant, as I have indicated, has liberty to apply. -- 11 of 11 --