Bailment of sperm & negligence claims

Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC


An application was brought by a widow in respect of stored sperm (gametes) of her late husband seeking an order the respondent continue to store them. The relevant terms of the contract between the respondent and the applicant’s late husband incorporated the National Health and Medical Research Council (“NHMRC”) Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (“the Guidelines”).

The Guidelines provided the respondent would not store the sperm of a deceased and would destroy it “unless there is a clearly expressed and witnessed directive to the contrary”.  The issue became whether the sperm was “personal property” capable of being transferred. The deceased had left the applicant a detailed Will, but it did not specifically provide for the sperm and there was not a written directive. The provisions of the Will were sufficient to deal with the deceased’s personal property.

Her Honour White J, considered the general position that there is no property in parts of body or a corpse and its amplification in Doodeward v Spence (1908) 6 CLR 406. However, her Honour gained significant assistance from the decision of Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1 of the Court of Appeal in England:

[26] In the recent decision of Yearworth, the Court of Appeal in England considered the central question to be decided on this application. A number of men were diagnosed with cancer and were invited by the hospital clinicians to provide samples of semen for frozen storage in the hospital’s fertility storage unit, licensed under the relevant United Kingdom legislation, prior to undergoing chemotherapy in case the treatment damaged their fertility. Prior to any attempt to use the semen, the requisite storage temperature was not maintained and the semen thawed. On the basis that the samples had perished, proceedings were commenced alleging want of care by the hospital and claiming damages for mental distress or psychological injury. The hospital admitted breach of duty to take reasonable care in respect of the storage but denied liability. One of the men had died before proceedings commenced and his wife, as administratrix of his estate, sued. The claimants were unsuccessful at first instance on the preliminary points ordered to be determined in advance of any assessment of damages, but succeeded on appeal. The Court of Appeal upheld the trial judge’s conclusion that damage inflicted to a substance generated by a person’s body, after its removal for storage purposes, did not constitute a bodily or “personal” injury to him. Therefore, damages to and consequential loss of each claimant’s sperm was not a personal injury to him and no damages could be recovered on that basis.

[27] The court held, however, relevantly for the present application, that since the claimants had ownership of the sperm for the purposes of claims in negligence, they had sufficient rights in relation to it to render them capable of having been bailors of it. The court held that there had been a gratuitous bailment of the sperm by the claimants to the storage unit and liability as a gratuitous bailee was established in principle. The arrangements with the complainants were held to be closely akin to contracts. It is in respect of that latter finding that the analysis of the Court of Appeal is of most assistance in answering the question whether this court has jurisdiction to make an order of the kind sought by the applicant for the temporary retention and preservation of her late husband’s sperm and ultimate return to her or to another storage facility.


[29] The court approached the conclusion to which it came in this way: for the purposes of their claims in negligence, the men had ownership of the sperm which they ejaculated; by their bodies they alone generated and ejaculated the sperm; the sole object of their ejaculation of the sperm was that in certain events it might later be used for their benefit and concluded that no person other than each man had any rights in relation to the sperm which he had produced. This then led to a consideration of issues of bailment which had been argued at the request of the court.


[31] The learned editors of Palmer on Bailment28 applauded29 the Court of Appeal for refusing to apply the historic “no property” rule and the equally “quirky” Doodeward exception in a modern medical context.30

29 At 1527.

30 Palmer, quoting Re Gray (supra) suggests that the reasoning in Yearworth would not extend to entitle a widow to extract sperm from her deceased husband for reproduction or any purpose.


[33] The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. The arrangement could also come to an end when the respondent died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner which it was held, which preserved its essential characteristics as frozen semen capable of being used. Any extra costs associated with that redelivery would be at the applicant’s expense.33 Such conditions may be imposed by r 250, if necessary.

Palmer (supra) at 906 [15-071].

Brisbane Barrister – David Cormack

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