THE PERSON
by
Matthew Kelly
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Matthew Kelly
The Person
Copyright 2011 by Matthew Kelly
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise) without the prior written permission of both the copyright owner and the above publisher of this book.
This is a work of fiction. Names, characters, places, brands, media, and incidents are either the product of the author’s imagination or are used fictitiously. The author acknowledges the trademarked status and trademark owners of various products referenced in this work of fiction, which have been used without permission. The publication/use of these trademarks is not authorized, associated with, or sponsored by the trademark owners.
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Catchwords:
Wills, estates, proving will in solemn form, meaning of person, meaning of human being, cloning, chimera.
Legislation:
Administration Act 1903 (WA)
Homosexuality and Transgender Equality Amendment Act 2016 (Cth)
Human Cloning Act 2013 (Cth)
Human Reproductive Technology Act 1991 (WA)
Interpretation Act 1984 (WA)
Marriage Act 1961 (Cth)
Prohibition of Human Cloning for Reproduction Act 2002 (Cth)
Wills Act 1970 (WA)
Representation:
Counsel:
Solicitors:
Case(s) referred to in judgment(s)
Attorney-General for the Commonwealth v Kevin and Others [2003] FamCA 94
McEwen v Simmons [2008] NSWSC 1292
SAUL CJ:
Introduction
1: In my third year of study, my lecturer in taxation law (whose name I have, with great apologies to him, since forgotten) made an oft-quoted reference to there being only two certainties in life – death and taxes. It was a flippant remark, humorous by virtue of its obvious truth. Yet even then, in the early months of 1995, I found myself wondering just how accurate the maxim remained.
2: Insofar as it relates to tax, it remains as true now as it ever was. Indeed, perhaps the only thing proven capable of keeping pace with technology is the government’s ability to earn revenue from it.
3: Death, on the other hand, is no longer quite the certainty it used to be.
4: We are not, of course, speaking here about improvements to medicine, spectacular as they have been in recent times. Whilst the average life-span in this country has skyrocketed to 89 when last I checked the statistics (87 for those of us unlucky enough to be born male), the focus remains on delaying death, not avoiding it altogether.
5: Not for lack of trying, it may be said. The regeneration experiments of 2015-16 stunned the world, culminating in the Regeneration Act 2016 being introduced with retrospective effect in this state and similar legislation passed almost universally throughout the world. So disturbing and disastrous were the results of those experiments that the area of research has faded into ignominy since – let us pray that it remains that way.
6: Meanwhile, another field of research has focussed on defeating death in other ways – not by extending life but by starting it afresh. Known until early this century as “cloning”, the process was popularly relabelled in the mid 10’s as “ReGenning” after the commercial enterprise that was substantially responsible for making such techniques available to the masses. For the sake of accuracy, I will use the generic term – as does the legislation.
7: I have listened to many days of expert evidence as to the scientific techniques involved with cloning, and I will endeavour later in this judgment to summarise my findings. I do not, however, wish to distract the reader from the intensely personal nature of this case. This is not a dispute between scientists nor governments nor moral campaigners. This is a dispute between a wife and her husband’s lover.
The Deceased’s Father - James Richard Baker
8: James Richard Baker (“Mr Baker”) was a scientist and a father. Chronologically, he was a scientist first and a father thereafter. In reality, his commitment to fatherhood both directed and determined his scientific achievements, wide-reaching though they were.
9: Mr Baker will already be a familiar name to those in the scientific community. Having been a gifted researcher in the field of medicinal and therapeutic cloning before its sudden surge in notoriety which accompanied the cloning of ‘Dolly’ the sheep in 1996, he accepted a position in early 1997 as research director and financial partner in a fledgling commercial cloning enterprise, Masha Cloning Technologies (“Masha Cloning”) – named after “Masha” the mouse – the first mammal to be cloned, in 1986.
10: Masha Cloning was ground-breaking in its technology and utterly traditional in its business enterprise. Seeing the potential to capitalise on the recent breakthroughs in cloning techniques and the sudden mainstream interest in the science, Mr Baker and his team set about the long, difficult and fiendishly expensive process of developing cloning techniques with sufficient reliability that they could be offered to the public.
11: When they began to trade in late 2011 – seemingly out of the blue and many years ahead of its nearest rival – they had achieved close to a hundred percent success rate in cloning household pets for relatively modest cost.
12: Suddenly, the emptiness that accompanied the loss of a favourite pet could be filled with a ‘perfect’ replica (genetically speaking). A winning race-horse could be cloned a thousand times, which predictably led to a veritable avalanche of legislation and controversy. New hope was given to those tasked with the protection of endangered species. The applications and ramifications were, and are, seemingly limitless.
13: Whilst the science was breathtaking, the marketing techniques left those at Mr Baker’s previous employ shaking their heads in bemusement. It targeted the vulnerable, honing in on their guilt and loneliness to secure a sale. Inevitably, it was an extraordinary success. To the surprise of all the world, a small Western Australian company had made cloning commercially viable.
14: Whilst many in the scientific community were surprised at Mr Baker’s change of direction, those closest to him were less so. To the scientific world, Mr Baker was a man dedicated to curing the thousands of sick for whom therapeutic cloning held a potential answer. To his friends and colleagues, Mr Baker wanted to cure only one person – his son, David.
Mr Baker’s son, David
15: To avoid confusion (to the extent that it is possible to do so), I note that the “David” just referred to is not the Deceased whose will is the subject of this action. Mr Baker’s son died at the age of 13 – too young to have established an estate, let alone to leave one. Young David suffered from a genetic disorder known as Duchenne Muscular Dystrophy, a disorder which causes the rapid degeneration of muscles. It began in David at the age of 5 and progressed appalling swiftly through his tender years.
16: The evidence of his son’s condition and deterioration was read out as part of an agreed statement of facts. This did not make it any easier to hear and certainly no less tragic. David needed braces to walk by age 8. By age 9, he was confined to a wheelchair – unable to speak, barely able to breathe, his spine curved like a man 80 years his senior.
17: Mr Baker was both passionate in seeking to discover a cure for his son and, as time went on, increasingly desperate. He was convinced that if he could replace the particular genes which were damaged with healthy ones, his son would be cured.
18: Mr Baker shared his time between his son and his research. His wife, a loving and caring mother by all accounts, died when the boy was
one – killed in a traffic accident. Mr Baker became the boy’s sole carer and attempted saviour.
19: It was not to be. His research did not progress swiftly enough. The research was brilliant but many years from being complete. As it turns out, a cure was only perfected some years ago – by a Swedish enterprise which, at least to some degree, built on the work done by Mr Baker all those years ago. The cure was some 20 years too late for young David Baker.
Masha Cloning
20: It was in the shadow of his son’s premature death that Mr Baker left his research position – having failed in his mission – and took up a position with Masha Cloning.
21: Much of Mr Baker’s history was obtained from his journals, which he kept (at that stage) meticulously. This is an apt time to quote a passage, as I could not hope to be able to summarise or paraphrase such a personal decision.
“People are talking. Whispering. They