Ganter v. Whalland

(2001) 54 NSWLR 122; (2001) 28 Fam LR 260; [2001] NSWSC 1101
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Ms. Ganter had had her eggs removed, fertilized with semen from Mr. Whalland (her partner of eight years, with whom she was in a de facto relationship) and frozen, in accordance with an agreement (the “Agreement”) made between Ms. Gantar, Mr. Whalland and the fertilization company. After Ms. Gantar and Mr. Whalland separated, Ms. Gantar requested to have the embryos transferred into her uterus in attempt to become pregnant. However, in accordance with the Agreement, any decision regarding the embryos required Mr. Whalland’s consent.

Mr. Whalland refused to permit the embryos to be implanted in Ms. Gantar as he did not wish to have financial responsibility for the child which might result.  Ms. Gantar sought an order that Mr. Whalland allow her to use the embryos to achieve pregnancy and a declaration that, should she become pregnant as a result of the embryo transfer procedure, Mr. Whalland would be irrebuttably presumed at law not to be the father.

Section 14(2) of the Status of Children Act 1996 (the “Act”) states that if a woman “becomes pregnant by means of a fertilization procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.”

Thus, a decision was requested on the following two questions:

(1) whether there was an irrebuttable presumption of law that a man, from whom sperm is obtained but who is not the husband of the woman undergoing the fertilization procedure, is not the father of the resultant child

(2) whether there was an irrebuttable presumption of law that if an ovum which has been fertilized outside of the applicant’s body using sperm obtained from the respondent is transferred, with the respondent’s consent, into the body of the applicant at a time when the respondent is not the husband, the respondent is not the father of the resultant child.

The Court reasoned that the central question of the case was “whether the presumption in section 14(2) requires the man from whom the sperm is obtained to be, in relation to the woman about whom section 14(2) speaks, ‘not her husband’ at the time the sperm is obtained, or at the time the fertilization procedure occurs.”

The Court determined that it was unable to determine whether the phrase “not her husband” referred to the time the sperm was obtained or the time the fertilization procedure occurred by looking to help by analogy to other sections in the Act, help from substituting the definition, help from a purposive construction, or help from extrinsic aids.  Thus the Court used the literal approach to analyze the language of the statute, and determined that the most natural construction would “require the status of being ‘not her husband’ to be ascertained at the time when the woman in question becomes pregnant.”

The Court considered that this interpretation produced practical results which were sensible (and noted that the anomalies which might be produced from such an interpretation were of a lesser degree than those anomalies which could ensue from interpreting the phrase as requiring that the husband status be ascertained at the time the sperm was obtained).

With certain exceptions relating to when other sections of the Act might apply, the Court thus answered question (1) in the affirmative.

The Court answered question (2) in the negative, but held that, as a matter of law, in situations where certain sections of the Act did not apply, if an ovum which had been fertilized outside of the body using sperm from the woman’s husband at the time the sperm was obtained, was transferred with such man’s consent into the body of such woman at the time that such man was not her husband, then such man would not be the father of the resultant child.

“49. I answer the questions as follows:

Question:

‘Whether on a true construction of sections 3 and 14 of the Status of Children Act 1996 (NSW):

(a) There is an irrebuttable presumption of law that a man, from whom sperm is obtained, but who is not the husband (within the meaning of sub-section 14(6) of the Status of Children Act 1996) of a woman, at the time when that woman undergoes a fertilisation procedure to transfer into her body an ovum which was fertilised outside her body and becomes pregnant, is not the father of any child born as a result of that pregnancy; and whether’

50. Answer:

‘Except in the circumstances where section 18 of the Status of Children Act 1996 applies, and subject to the possibility of the irrebuttable presumption being displaced pursuant to section 17 of the Status of Children Act 1996, yes.’

51. Question:

‘Whether on the true construction of sections 3 and 14 of the Status of Children Act 1996 (NSW):

‘(b) there is an irrebuttable presumption of law that if an ovum which has been fertilised outside the applicant’s body using sperm obtained from the Respondent, is transferred, with the Respondent’s consent, into the body of the Applicant at a time when the Respondent is not the husband of the Applicant (within the meaning of sub-section 14(6) of the Status of Children Act 1996), and the Applicant becomes pregnant, the Respondent is not the father of any child born as a result of the pregnancy’

52. Answer:

‘No; however as a matter of law, in those situations where section 18 of the Status of Children Act 1996 does not apply, and subject to the possible operation of section 17 of the Status of Children Act 1996, if an ovum which has been fertilised outside the body of a woman using sperm obtained form a man (“the Relevant man”) who is her husband (within the meaning of sub section 14(6) of the Status of Children Act 1996) at the time the sperm is obtained, and that fertilised ovum is transferred, with the consent of the Relevant Man, into the body of the woman at a time when the Relevant Man is not the husband (in that same extended sense) of the woman, and the woman becomes pregnant, the Relevant Man is not the father of any child born as a result of the pregnancy.’”

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