Australian Property Law and Biological Material
Introduction
Advancements in modern technologies in the field of assisted reproductive technology (ART) have opened up the world to a vast array of possibilities. Scientists have developed the ability to retrieve and preserve individual gametes and embryos by way of cryopreservation, a technique that involves preserving biological materials at very low temperatures outside the body for years. . This field of in vitro fertilization (IVF), worth $2 billion annually in the United States, has forced us to think about human tissue in ways never before thought possible. These advancements have meant that it is now possible for children to be conceived after the death of one of their genetic parents. The first reported case of posthumous sperm retrieval (PSR) was in 1980 and between then and 1995 there were 82 requests for PSR in the US alone. While PSR has enabled males (predominately), previously deemed sterile once again fertile, it has posed a number of issues that have been described as the “most challenging, difficult and sensitive that are likely to be encountered in the field of medicine”. Jocelyn Edwards; Re the estate of the late Mark Edwards represented the first time in NSW that a woman was allowed to harvest the sperm of her deceased partner. However, it highlighted a number of issues concerning the control of processes involving gametes, the right to use and control them and whether gametes can actually be considered as property, as well as the obvious moral and ethical issues with completing such a radical procedure. Furthermore, there are those that concern the rights of the child, as well as the danger of commercialisation. This essay will explore each of the policy issues raised in Re Edwards and the concerns for the broader community spectrum as a whole.
Technology, indeterminacy and the need for law reform
In the Concept of Law, H.L.A. Hart dictates his theories of legal adjudication and hypothesises his resolution to doctrines of
Advancements in modern technologies in the field of assisted reproductive technology (ART) have opened up the world to a vast array of possibilities. Scientists have developed the ability to retrieve and preserve individual gametes and embryos by way of cryopreservation, a technique that involves preserving biological materials at very low temperatures outside the body for years. . This field of in vitro fertilization (IVF), worth $2 billion annually in the United States, has forced us to think about human tissue in ways never before thought possible. These advancements have meant that it is now possible for children to be conceived after the death of one of their genetic parents. The first reported case of posthumous sperm retrieval (PSR) was in 1980 and between then and 1995 there were 82 requests for PSR in the US alone. While PSR has enabled males (predominately), previously deemed sterile once again fertile, it has posed a number of issues that have been described as the “most challenging, difficult and sensitive that are likely to be encountered in the field of medicine”. Jocelyn Edwards; Re the estate of the late Mark Edwards represented the first time in NSW that a woman was allowed to harvest the sperm of her deceased partner. However, it highlighted a number of issues concerning the control of processes involving gametes, the right to use and control them and whether gametes can actually be considered as property, as well as the obvious moral and ethical issues with completing such a radical procedure. Furthermore, there are those that concern the rights of the child, as well as the danger of commercialisation. This essay will explore each of the policy issues raised in Re Edwards and the concerns for the broader community spectrum as a whole.
Technology, indeterminacy and the need for law reform
In the Concept of Law, H.L.A. Hart dictates his theories of legal adjudication and hypothesises his resolution to doctrines of
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