Kate Falconer, ‘An Illogical Distinction Continued: Re Cresswell and Property Rights in Human Biological Material’

INTRODUCTION
… The body of Australian case law dealing with the question of property rights in human biological material is large and contradictory. Re Cresswell is the culmination of over three decades of Australian jurisprudence on the issue and is notable for its comprehensive and in-depth discussion of preceding decisions. Brown J’s use of precedent (more precisely, her Honour’s favouring of one body of precedent over another) is not without issue, however. After setting out the factual background to the dispute in Part II, this article engages with Brown J’s reasoning in Re Cresswell in three key respects. Part III first describes Brown J’s reasoning in reaching the conclusion that the sperm at issue was capable of being the subject of property rights. Crucially, this description reveals a distinction in the approaches taken in the case law between finding property rights in human biological material removed from a source individual pre-mortem and material removed post-mortem. Against the background of her Honour’s reasoning, this article makes its central critique in Part IV: that the explanation offered for the pre-/post-mortem dichotomy by Brown J is a result of unwarranted legal formalism that ignores the practical realities of disputes in this area of law …

Kate Falconer, An Illogical Distinction Continued: Re Cresswell and Property Rights in Human Biological Material, [2019] University of New South Wales Law Journal Forum (1) 1.

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