Chapman v South Eastern Sydney Local Health District

[2018] NSWSC 1231

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231

Hearing dates:

6 July 2018

Date of orders:

10 August 2018

Decision date:

10 August 2018

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. It is declared that the plaintiff is entitled to the possession of the sperm recovered on 28 March 2018 from the body of her late husband Joel Chapman, subject to orders 2 and 3.

 

2. Orders 5 and 6 made by Garling J on 28 March 2018 are varied to the extent that the first defendant is hereby ordered to deliver up possession of the said sperm to the plaintiff but only upon the plaintiff causing a suitably equipped transportation company or courier to collect it on her behalf from the first defendant on consignment for transportation to a storage facility in either Tasmania, the Australian Capital Territory or the Northern Territory.

 3. If collection pursuant to order 2 has not taken place by 10 December 2018 the first defendant is to destroy the sample.

Catchwords:

PERSONAL PROPERTY – ownership and possession – possession – rights of possession – human bodies or tissue as property – gametes – sperm – application by widow for possession of sperm extracted from late husband – whether sperm lawfully extracted – whether transfer of possession prohibited by statute – Assisted Reproductive Technology Act 2007 (NSW), s 21

 

CIVIL PROCEDURE – miscellaneous matters – declarations – application by widow for declaration of ownership of sperm – where sperm extracted from body of deceased husband pursuant to court order – where existing statutory regime regulates extraction, storage, supply, use and exportation of human gametes – Assisted Reproductive Technology Act 2007 (NSW), Pt 2 Div 3 – Human Tissue Act 1983 (NSW), ss 4(2A), 23 – declaration granted

 

CIVIL PROCEDURE – jurisdiction – where interim orders made authorising extraction and storage of sperm from unconscious and moribund patient – whether orders authorised under parens patriae jurisdiction – whether sperm extraction procedure for “benefit” of moribund person – whether orders authorised under Court’s inherent jurisdiction – whether orders authorised under Guardianship Act 1987 (NSW) – whether orders effective

 

WORDS AND PHRASES – “medical or dental treatment” – Guardianship Act 1987 (NSW), ss 33, 36 – whether “medical or dental treatment” inclusive of sperm extraction procedure

 

WORDS AND PHRASES – “tissue” – Human Tissue Act 1983 (NSW), ss 4(2A), 23(3) – whether “tissue” in s 23(3) includes reference to ova and semen – whether reference excluded by context or subject-matter

WORDS AND PHRASES – “supply” – Assisted Reproductive Technology Act 2007 (NSW), s 21 – where claim of property in sperm – whether transfer of possession from bailee to owner “supply” of sperm – whether “supply” different to release or surrender

Legislation Cited:

Assisted Reproductive Technology Act 2007 (NSW)
Crimes Act 1900 (NSW)
Family Law Act 1975 (Cth)
Guardianship Act 1987 (NSW)
Human Tissue Act 1983 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court of Queensland Act 1991 (Qld)

Cases Cited:

AB v Attorney-General of Victoria [2005] VSC 180
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15
Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45
Ex parte application of Mercedi Cooper [2018] NSWSC 766
Fields v Attorney-General of Victoria [2004] VSC 547
GLS v Russsell-Weisz [2018] WASC 79
In re B (A Minor) [1988] AC 199
In re F [1990] 2 AC 1
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23
MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231; [2000] NSWSC 358
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Ping Yuan v Da Yong Chen [2015] NSWSC 932
Re Cresswell [2018] QSC 142
Re Denman [2004] 2 Qd R 595; [2004] QSC 70
Re Estate of Edwards (2011) NSWLR 198; [2011] NSWSC 478
Re Eve (1986) 31 DLR (4th) 1
Re Floyd [2011] QSC 218
Re Gray [2001] 2 Qd R 35; [2000] QSC 390
Re H, AE [2012] SASC 146
Re H, AE (No 2) [2012] SASC 177
S v Minister for Health (WA) [2008] WASC 262
Y v Austin Health (2005) 13 VR 363; [2005] VSC 427

Category:

Principal judgment

Parties:

Yoshiko Chapman (plaintiff)
South Eastern Sydney Local Health District (first defendant)
Attorney General of New South Wales (second defendant)

Representation:

Counsel:
Mr Evan James/Mr Ari Katsoulas (plaintiff)
Mr Stuart M Kettle (first defendant)
Mr David Kell SC/Mr James Emmett (second defendant)

  Solicitors:
AHA Taylor Lawyers (plaintiff)
Crown Solicitor’s Office (second defendant)

File Number(s):

2018/98472

Judgment

1. The plaintiff is the widow of the late Joel Chapman. On 23 March 2018 Mr Chapman underwent an endovascular embolisation procedure at the Prince of Wales Hospital, Randwick. This was an attempt to treat two arteriovenous fistulas in the membrane enveloping the patient’s brain. As a result of complications of the surgery and without recovering consciousness Mr Chapman suffered a massive stroke and was pronounced dead at 10:00 am on 29 March 2018. At 4:00 pm that day, at the plaintiff’s request and under authority of an order of this Court, samples of the deceased’s sperm were extracted by a urologist.

2. The samples have been cryopreserved and are stored in the Andrology Laboratory at the Royal Hospital for Women, Randwick. The plaintiff seeks a declaration that she is entitled to possession of the sperm. She also asks that interlocutory orders of the Court, by which removal of the sperm from storage and use of it were restrained, now be discharged. The first defendant is the authority that controls and operates the Prince of Wales Hospital and the Royal Hospital for Women. The Attorney General has intervened as second defendant, pursuant to leave granted on the Attorney’s application on 6 June 2018.

3. My findings of fact and legal conclusions are arranged under the following headings:

1. Plaintiff’s relationship to the deceased ([4])

2. Commencement of proceedings and extraction of gametes ([5]-[7])

3. Circumstances in which final relief is now claimed ([8]-[11])

4. Authority for sperm extraction from a living unconscious patient ([12]-[57])

The Human Tissue Act ([13]-[21])

The Court’s parens patriae jurisdiction ([22]-[37])

The Guardianship Act ([38]-[47])

The need for clarification by statute ([48]-[57])

5. Authority for sperm extraction from a deceased male ([58]-[74])

6. The effect of the duty judge’s orders in this case ([75])

7. Release of the sperm for removal to another jurisdiction ([76]-[86])

8. Orders ([87]-[88])

1. Plaintiff’s relationship to the deceased

4. The plaintiff and Mr Chapman met in late 2014 when she was aged 28 and he was 32. They commenced a relationship soon after and lived together from early 2016. They married in late 2017. From at least two years prior to the wedding they had expressed to each other their desire to have children together. In about April 2017 they took out medical insurance as a couple in order to be covered for pregnancy and childbirth after the usual waiting period. Once married they attempted to conceive. On 9 March 2018 the plaintiff consulted a general practitioner for advice on her ability to fall pregnant and for recommendation of any tests that might be considered necessary to verify this.

2. Commencement of proceedings and extraction of gametes

5. Following the embolisation procedure on 23 March 2018 Mr Chapman was still unconscious on 27 March when the plaintiff received advice that he was unlikely to survive. She then commenced enquiries about the possibility of recovering and preserving her husband’s sperm. She was informed that there was medical capability to carry this out but that the hospital would require authorisation by court order.

6. During the evening of 27 March 2018 Mr Chapman’s parents contacted Garling J, the Common Law Division duty judge, and ascertained what information his Honour would require to consider an application for Court approval of sperm extraction. The information was gathered during the next day and sent to his Honour by email shortly after 5:00 pm on 28 March 2018. Garling J made orders ex parte and sent them by email to Mr Chapman’s father at 6:30 pm, in these terms:

1. A declaration that the plaintiff is, for the purposes of Part 5 of the Guardianship Act 1987, the person responsible under s 33A(4)(b) of that Act, and is lawfully entitled to consent to the open testicular sperm extraction procedure being performed upon her husband, Joel Robert Chapman (“the procedure”).

2. Order that, subject to Order 4, Dr Andrew Richards, is lawfully entitled to carry out the procedure upon condition that Dr Richards agrees to freeze, or cause the freezing of, the extracted sperm and associated human tissue, and keep it, or cause it to be kept in viable condition at an appropriate storage facility until further order of the Court.

3. Order that the defendant by its servants and agents do all things necessary to permit Dr Richards to carry out the procedure.

4. Order that In the event of an overriding medical demand affecting the health and wellbeing of Joel Robert Chapman, such medical demand shall take priority over the undertaking of the procedure in accordance with Order 2.

5. Order that the plaintiff is restrained from using or otherwise dealing with the sperm, and associated human tissue, of Joel Robert Chapman without leave first being obtained from the Court.

6. Order that the plaintiff is further restrained from removing the sperm, and associated human tissue, or causing it to be removed, from the storage facility without leave first being obtained from the Court.

7. Order the plaintiff to file and serve a Summons and supporting affidavits by 12 noon Wednesday 4 April 2018.

8. Order that the Summons be listed before Garling J at 9.30 am on Thursday 5 April 2018 for further directions.

9. Grant liberty to apply on 1 hours’ notice.

7. As earlier mentioned Mr Chapman was pronounced dead the next morning and the sperm retrieval procedure was carried out that afternoon.

3. Circumstances in which final relief is now claimed

8. The plaintiff filed her summons on 5 April 2018 followed by an amended summons on 19 April 2018. The final relief now claimed is as follows:

1. [A declaration that the plaintiff] is entitled to the possession of the sperm recovered from the body of her late husband Joel Chapman.

2. That the order made by Garling J on 28 March 2018 that the plaintiff be restrained from using or otherwise dealing with the sperm and associated human tissue without leave of the court be discharged.

4. That the order made by Garling J on 28 March 2018 that the plaintiff be restrained from removing the sperm and associated human tissue without leave of the court be discharged.

9. The plaintiff has given unchallenged evidence that she wishes to have possession of the sperm “so that I can safely store it until a time that I may decide to use it”. If she obtains the declaration and orders now sought she may decide at a future date to engage a suitable specialist and laboratory to provide in vitro fertilisation. The Assisted Reproductive Technology Act 2007 (NSW) prohibits the performance of such a procedure in this State unless the sperm donor has given written consent: ss 18, 19, 23. The plaintiff’s late husband had not provided any such written consent prior to his operation on 23 March 2018 because there was no occasion for it. After the operation, of course, he was unable to give written consent. The Act also prohibits storage or export of the sperm in the absence of written consent of the donor: ss 22, 25.

10. These constraints of the Assisted Reproductive Technology Act are of concern to the first defendant. It is a registered provider of assisted reproductive technology services (“ART provider”, as defined in the Act) and wishes to ensure its own compliance with the legislation. By email to the plaintiff’s solicitor on 14 May 2018 the first defendant’s Principal Legal Officer pointed out that the orders of Garling J require the extracted sperm to be stored in an appropriate facility (orders 2 and 6) but do not identify a particular facility. The email drew attention to the fact that, in the absence of donor consent, the first defendant cannot lawfully continue to store the material except insofar as his Honour’s orders protect it; further, that the sperm cannot be used for in vitro fertilisation in New South Wales. The email requested that the plaintiff “investigate interstate or international ART providers who are prepared to provide ART services, if this is her intention”.

11. Genea Pty Ltd has offered to accept the sperm for storage in liquid nitrogen vapour at a facility in Kent Street, Sydney. It has identified a courier company which has the capability safely to transport the samples. The Court could not make orders for release to Genea Pty Ltd under this proposal as storage at that company’s premises in New South Wales, in the absence of donor consent, would infringe s 25 of the Act. Therefore, if the plaintiff obtains the first of the orders now sought it is intended she would arrange for removal of her late husband’s sperm from New South Wales to storage in Tasmania, the Australian Capital Territory or the Northern Territory. There appears to be no legislation in any of those jurisdictions regulating assisted reproductive treatment, in particular using sperm of a donor who is deceased.

4. Authority for sperm extraction from a living unconscious patient

12. Consideration of the plaintiff’s claim to possession of the cryopreserved sperm samples must commence with reference to the law which applied to the extraction of the samples. The procedure is invasive and would have constituted an assault or trespass to the person, unlawful both criminally and civilly in the absence of consent or other justification: Department of Health & Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (“Marion’s Case”) at 232-233 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 310 (McHugh J). In circumstances where the patient’s consent could not be obtained the hospital and the urologist naturally sought the authority of a court order.

The Human Tissue Act

13. In addition to the law of assault constituting a bar to removal of sperm from an unconscious patient in the absence of consent or court order, s 36 of the Human Tissue Act 1983 (NSW) prohibits this explicitly, subject to exceptions. The relevant parts of the section are as follows:

36 Offences

(1) A person shall not remove tissue from the body of any other person (whether living or deceased) except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by the first mentioned person.

Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.

…

(4) Subsections (1), (2) and (2A) do not apply to or in respect of anything authorised by or under:

(a) the Coroners Act 2009, or

(b) the Anatomy Act 1977, or

(c) any other law.

14. “Tissue” is defined for the purposes of the Human Tissue Act in s 4(2A) as follows:

(2A) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to tissue includes a reference to:

(aa) blood,

(a) ova and semen, and

(b) foetal tissue.

15. Applying the words of this definition there is nothing about the “context or subject-matter” of s 36(1) which would “indicate or require” that the prohibition in s 36(1) is not applicable to the removal of sperm as a class of tissue.

16. Exceptions are provided for in s 34(1), including that the Act (in particular s 36(1)) does not prohibit:

(a) the removal of tissue from the body of a living person in the course of medical, dental or surgical treatment carried out by a dentist or a medical practitioner in the interests of the health of the person [provided consent is given by or on behalf of the person, unless the obtaining of consent is not reasonably practicable and the dentist or medical practitioner is not aware that it has been refused or in urgent circumstances for the preservation of life]

…

(b4) the provision of a gamete by a living person to an ART provider in accordance with the Assisted Reproductive Technology Act 2007

17. The exception in par (a) of s 34(1) is not engaged with respect to the removal of sperm for assisted reproductive purposes because this cannot be characterised as “treatment … in the interests of the health of the person”. Extraction of the sperm of an unconscious and moribund patient inherently cannot be a procedure performed “in the interests of the health of the person”. It is not directed to combating any disease or disorder or to improving the physical function of the patient in any respect. Its purpose is only to facilitate another person undertaking an artificial reproductive process. In the circumstances the patient is incapable of deriving psychological or emotional benefit.

18. As for the exception in par (b4) of s 34(1), an “ART provider” is defined in the Assisted Reproductive Technology Act as one who provides, for fee or reward in the course of a business, services of, inter alia, assisted reproductive treatment and storage of gametes for use in such treatment. I have referred at [9] above to the prohibitions in the Assisted Reproductive Technology Act upon storage and use of gametes (including sperm) except in a manner consistent with written consent of the provider. The exception in s 34(1)(b4) could have no operation in relation to an unconscious patient who had not provided written consent.

19. There is no provision of the Human Tissue Act pursuant to which any person could give “consent or authority that is, under this Act, sufficient authority” for removal of sperm from an unconscious patient who has not given prior consent. The prohibition in s 36(1) cannot be averted under those exclusionary words of the subsection. The Act predates the Assisted Reproductive Technology Act and was not originally drafted with extraction of gametes in mind. Subsection 4(2A) of the Human Tissue Act (quoted above) was added by amendment in 1985 to extend the meaning of “tissue” to include gametes, subject to contrary indication in particular parts of the Act. Part 2, providing for donation of tissue by living persons, expressly does not extend to gametes (s 6) and in any event does not provide for removal of tissue without patient consent. Section 23, discussed below at [61]-[73], is only concerned with authorisation by the “designated officer” of a hospital for removal of tissue from the body of a deceased person, not from an unconscious or otherwise incapable patient.

20. It follows that s 36 of the Human Tissue Act explicitly bars any person from purporting to consent to removal of sperm from an unconscious patient and prevents the Court itself granting authorisation, subject to any “other law” being identified under s 36(4)(c). Judges of this Court have in the past considered two alternative possible bases upon which authorisation might be given. The first is by the Court exercising its parens patriae jurisdiction to authorise the hospital and surgeon directly. The second is by making a declaration that the patient’s spouse is the “person responsible” for the patient under the Guardianship Act 1987 (NSW) and in that capacity has authority to give consent. I will consider each of those alternatives in turn under headings which follow.

21. Apart from those two sources of principle I do not consider that recourse can be had to the Court’s inherent jurisdiction. In Re Gray [2001] 2 Qd R 35; [2000] QSC 390 at [9] Chesterman J referred to the wide conferral of power under the Supreme Court of Queensland Act 1991 (Qld), similar to s 23 of the Supreme Court Act 1970 (NSW). In the course of considering an application for an order to permit the extraction of sperm from a deceased person, his Honour said:

I apprehend that the section does not confer power on the judges of the court to do whatever accords with their own, perhaps idiosyncratic, views of justice. The jurisdiction is to afford justice to litigants according to law, ie established legal principle. The difficulty in the present case is identifying any principle which would justify making the order.

The Court’s parens patriae jurisdiction

22. The origins and history of the parens patriae jurisdiction were traced by the Supreme Court of Canada in Re Eve (1986) 31 DLR (4th) 1 at 13-22. The way in which the jurisdiction devolved to this Court was explained by O’Keefe J in MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231; [2000] NSWSC 358. Essentially it is a jurisdiction to make orders for the care, protection and benefit of subjects who lack legal capacity to make decisions in their own interests, including persons of unsound mind and children. In Re Eve at 27-29 La Forest J, speaking for the Supreme Court of Canada, cited ample authority for the proposition that the jurisdiction is at large and undefined. It is open to exercise in new situations where it has not previously been invoked.

23. La Forest J said (at 19) the limits of the parens patriae jurisdiction are fixed not by a closed category of instances but by “its informing principles” which were identified as follows. First, the jurisdiction is (at 28):

founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

24. Secondly, the jurisdiction may be exercised in anticipation (at 28):

[A] Court may act not only on the ground that the injury to person or property has occurred, but also on the ground that such injury is apprehended.

25. Thirdly, the parens patriae jurisdiction may only be exercised for the benefit of the incapable person and not in the interests of another party (at 29):

Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised … . The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

26. In Re Eve the Supreme Court of Canada held that the jurisdiction should not be exercised to approve a hysterectomy for a 24-year-old mentally impaired woman. She was incapable of giving her own consent. Her mother wished to consent on her behalf in circumstances where the procedure would be strictly contraceptive and not aimed at the relief or cure of any disorder or suffering. The Court considered that its approval was being sought, to a significant degree, for the benefit of those who would have to care for the young woman if she should fall pregnant and take responsibility for any child she might bear.

27. In re B (A Minor) [1988] AC 199 was a case decided in the wardship jurisdiction of the primary judge, concerning a girl of under 18 years who was profoundly mentally impaired. She was under the care of a local council. At first instance authority was given for sterilisation of the girl by tubal ligation. Her impairment and behavioural problems were so severe that it was clear to the House of Lords, as it had been to the first instance judge and to the Court of Appeal, that approval of the procedure was in the interests of the girl’s welfare. The decision in Re Eve was discussed. Although the parens patriae jurisdiction was under consideration in Re Eve whereas a wardship jurisdiction with a different source was exercised in In re B (A Minor), common to both cases was the criterion of whether the operation for which approval was sought was necessary in the interests of the welfare of the incapable person. Comparison of these decisions is useful primarily to illustrate the application of that criterion. In Re Eve the young woman would not have been adversely affected by pregnancy and childbirth in anything like the degree that was under consideration in In re B (A Minor).

28. In re F [1990] 2 AC 1 concerned a severely mentally impaired woman of 36 years who was a voluntary in-patient in a mental hospital. Her mother gave consent for her to undergo a sterilisation procedure, supported by medical opinion that she would be extremely distressed by pregnancy and childbirth and unable to cope. The mother sought a declaration that it would be lawful for the doctors to proceed. It was held that the parens patriae jurisdiction of the High Court of Justice had been brought to an end by revocation of a Royal Warrant in 1960 and that no statutory regime provided for the giving or withholding of consent by the Court. It was nevertheless decided that the Court had jurisdiction to declare whether the proposed operation would be lawful. Once again, that jurisdiction was exercised by reference to the criterion of the best interests of the incapable person.

29. These cases were all considered by the High Court in Marion’s Case. There a 14-year-old girl was severely cognitively impaired and suffered epilepsy and lack of behavioural self-control. A hysterectomy was proposed in order to prevent pregnancy and menstruation. The parents wished to give consent. The High Court dealt with the question of whether the parents were able to give consent for such an operation and the further question of whether the Family Court’s approval was required or could be given. These matters were considered at the level of principle without findings having been made as to what were in fact the best interest of the child with respect to the proposed operation.

30. The majority concluded that consent to such an operation for contraceptive purposes was beyond the authority of the parents as legal guardians: at 249-254 (Mason CJ, Dawson, Toohey and Gaudron JJ). However their Honours held that the Family Court had power to give or withhold consent under ss 63 and 64 of the Family Law Act 1975 (Cth). Primarily this power derived from s 64(1)(c) whereby “the court may make such order in respect of [inter-alia the welfare of the child] as it considers proper”. At 256 Mason CJ, Dawson, Toohey and Gaudron JJ said that 1983 amendments to the Family Law Act which had introduced the power of the Court to make orders for the welfare of the child:

were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of court.

31. Further, their Honours said (at 257):

What was achieved by the amendments of 1983 and was not rescinded by the change to the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction. And we agree with McCall J in the present case that the fact that the Family Court “may not have the power to make a child a ward of the court does not ... prevent it exercising the general parens patriae power with respect to children”.

Deane and McHugh JJ reached the same conclusion (at 294 and 318, respectively).

32. Principles upon which the jurisdiction may be exercised, substantially to the same effect as those summarised (at [23]-[25] above) from the Canadian Supreme Court’s judgment in Re Eve, were articulated by Mason CJ, Dawson, Toohey and Gaudron JJ at 259-260 (citations omitted):

It is to be remembered that what is sought is not the court’s consent as, for example, in the signing of hospital forms, but its authorisation.

The function of a court when asked to authorise sterilisation is to decide whether, in the circumstances of the case, that is in the best interests of the child. We have already said that it is not possible to formulate a rule which will identify cases where sterilisation is in his or her best interests. But it should be emphasised that the issue is not at large. Sterilisation is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.

In the context of medical management, “step of last resort” is a convenient way of saying that alternative and less invasive procedures have all failed or that it is certain that no other procedure or treatment will work … . The objective to be secured by sterilisation is the welfare of the disabled child. Within that context, it is apparent that sterilisation can only be authorised in the case of a child so disabled that other procedures or treatments are or have proved inadequate, in the sense that they have failed or will not alleviate the situation so that the child can lead a life in keeping with his or her needs and capacities.

It is true that the phrase “best interests of the child” is imprecise, but no more so than the “welfare of the child” and many other concepts with which courts must grapple. … And, if authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities. ...

33. In MAW v Western Sydney Area Health Service O’Keefe J summarised the limits in principle upon the exercise of the jurisdiction as follows (at [31]):

The parens patriae jurisdiction of the Court is essentially protective in nature (Marion’s Case at 280) and although broad, is to be exercised cautiously (In Re O’Hara [1970] AC 668 at 695; Marion’s Case at 280). Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others (Re Eve at 34). Furthermore, it has limits.

34. With respect I agree with that summary and with his Honour’s further statement (at [40]) that, based on these authorities:

operative procedures that are not necessary to preserve the life or ensure improvement or prevent deterioration in the physical or mental health or well-being of an incapable person are not able to be consented to by the Court under its parens patriae jurisdiction.

35. However, unlike his Honour, I do not consider that the cases I have discussed (and which his Honour also considered) establish a “controversial special category or case of non-therapeutic sterilisation” as an exception to the above-stated principle. Rather, the sterilisation cases conform to and illustrate the principle. Putting to one side the adjective “non-therapeutic”, which was criticised as being of uncertain import in In re B (A Minor), sterilisation procedures have been approved by courts where it has been found that an improvement (or the avoidance of deterioration) in the physical or mental health of the incapable person would be achieved and have not been approved where that has not been demonstrated and/or where it has appeared that the procedure was sought predominantly for the benefit of a parent or carer. In Marion’s Case the factual judgment was not made. The principle was stated for the guidance of the court below in making the inquiry.

36. I am also respectfully unable to agree with O’Keefe J that it is relevant to attempt to evaluate or take into account the best interests or welfare of any child that might be conceived using the sperm extracted under the procedure for which the Court’s approval is sought: see [43]-[44] of his Honour’s judgment. As the parens patriae jurisdiction may only be exercised for the benefit and well-being of the patient upon whom the operation is to be performed, evaluation of the effect upon the prospective child of “being brought into existence in the manner, at the time and in the circumstances contemplated” appears to me, with respect, to be irrelevant.

37. In my view the authorities show that this Court’s parens patriae jurisdiction cannot be exercised to approve a surgical procedure for extraction of sperm from an unconscious and moribund patient. Such an operation could not be for his benefit, welfare or protection in any sense. In such a case there may be, as here, evidence that the relationship between the patient and his spouse was strong. That evidence may support an inference that, if the patient should have recovered consciousness, he would have been gratified to know that the procedure had been performed and that his spouse would potentially be able to conceive his children. But the situation under consideration is one in which the patient would not recover consciousness and such gratification would never be experienced. In a case such as this the patient is beyond being benefited in any sense, physical or emotional, by the extraction of his sperm. The procedure could only be for the benefit of another party, the surviving spouse. Firmly established principles are against the Court authorising an invasive procedure for the sole purpose of benefiting another.

The Guardianship Act

38. If there is statutory authority for a person to give consent on behalf of an unconscious patient for a sperm retrieval procedure, it would have to be found in Part 5 of the Guardianship Act. The following extracts from the provisions of that part are relevant for consideration:

32 Objects

The objects of this Part are:

(a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

(b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.

33 Definitions

(1) In this Part:

clinical trial means a trial of drugs or techniques […].

medical or dental treatment or treatment means:

(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, or

(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist, or

(c) any other act declared by the regulations to be treatment for the purposes of this Part,

… but does not include: [subpars (d)-(g) omitted, not relevant to the issue in this case].

…

person responsible has the meaning given by section 33A.

…

(2) For the purposes of this Part, a person is incapable of giving consent to the carrying out of medical or dental treatment if the person:

(a) is incapable of understanding the general nature and effect of the proposed treatment, or

(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

33A Person responsible

(1) Object

The object of this section is to specify the person who is the person responsible for another person for the purposes of this Part.

…

(4) Person responsible for another person

There is a hierarchy of persons from whom the person responsible for a person other than a child or a person in the care of the Secretary under section 13 is to be ascertained. That hierarchy is, in descending order:

(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b) the spouse of the person, if any, if:

(i) the relationship between the person and the spouse is close and continuing, and

(ii) the spouse is not a person under guardianship,

(c) a person who has the care of the person,

(d) a close friend or relative of the person.

Note. Circumstances in which a person is to be regarded as having the care of another person are set out in section 3D. The meaning of close friend or relative is given in section 3E.

(5) Operation of hierarchy

[Omitted: this subsection provides for the person in subs (4)(b)-(d) to become the responsible person if the person above him or her in the hierarchy declines to exercise the function].

34 Application of Part

(1) This Part applies to a patient:

(a) who is of or above the age of 16 years, and

(b) who is incapable of giving consent to the carrying out of medical or dental treatment.

36 Who may give consent

(1) Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given:

(a) in the case of minor or major treatment - by the person responsible for the patient, or

(b) in any case - by the Tribunal.

(2) The guardian of a patient may also consent to the carrying out of continuing or further special treatment if the Tribunal has previously given consent to the carrying out of the treatment and has authorised the guardian to give consent to the continuation of that treatment or to further treatment of a similar nature.

39. In s 33(1) there are definitions of “major treatment”, “minor treatment” and “special treatment” but these categories are not material to the issue before the Court. Regulation 10 of the Guardianship Regulation 2016 declares treatments to be “major”, for example, if they involve the administration of long-acting injectable hormones for contraception or menstrual regulation, if they involve the administration of a drug of addiction, if a general anaesthetic is required or if death, brain injury, paralysis or other such serious consequences are a significant risk of the treatment. With respect to par (c) of the definition of “special treatment”, reg 9 declares that treatments for terminating pregnancy, treatment in the nature of vasectomy or tubal occlusion and treatments involving aversive stimulus are all “special”.

40. For the purposes of the definition of “responsible person” in s 33A(4), the word “spouse” is defined in s 3(1) as including a de facto partner. Section 37 makes provision for medical personnel to carry out, in urgent circumstances, treatment of persons incapable of giving consent without first obtaining the consent of a responsible person or the Tribunal. I have not quoted that section in full as it does not appear to me to assist in resolving the issue of interpretation.

41. When the plaintiff sought urgent ex parte orders from the duty judge Mr Chapman was incapable of indicating whether or not he consented to extraction of his sperm. Sections 33(2) and s 34(1) were therefore engaged and consequently Pt 5 applied to him. No guardian had been appointed so that, in accordance with the hierarchy established by s 33A(4), the plaintiff as his spouse was the person responsible. The sperm extraction procedure was not “special treatment” as defined in s 33(1) and reg 9. It therefore did not require consent of the Civil and Administrative Tribunal. The question whether the plaintiff, as the most senior responsible person, could give lawful consent for the procedure under s 36(1) depends entirely upon whether sperm extraction was a “medical treatment” within the meaning of the Act.

42. “Treatment” could only include surgical recovery of sperm from an unconscious patient if the word should be viewed so broadly as to include any external intervention in a patient’s bodily integrity or processes, divorced from consideration of the purpose of the intervention. But the second of the objects of Pt 5, as stated in s 32(b), is a strong indication that the word “treatment” is used throughout the Part in a sense to which purpose is integral, namely, “the purpose of promoting [the patient’s] health and well-being”. That is a conventional sense of the word in accordance with one of the meanings given in the Macquarie Dictionary:

3. a. the application of medicines, surgery, psychotherapy, etc., to a patient to cure a disease or condition: asthma treatment.

43. In this sense the extraction of the sperm of an unconscious and moribund patient is not treatment for the reasons given in [17] above. The first object in s 32 also indicates that “treatment” is used in this purposive sense. The object is expressed in terms of “necessary medical … treatment” for patients not capable of giving consent. Necessity could only pertain to treatment directed towards relieving the patient’s symptoms, improving his comfort, rectifying a disorder of fighting a disease. Within the sense of this object, treatment could not be necessary unless directed to one or more of these ends. It could not be necessary if it could make no difference to the patient’s affliction or injury.

44. Throughout the expanded definitions of major and minor treatment in s 33 there is no indication that the legislature intended to broaden the concept of treatment for which consent may be given under s 36, so as to embrace medical interventions which do not have the purpose of promoting the patient’s health or well-being.

45. The sections within Pt 5 concerning how a medical practitioner or hospital is to request consent from a responsible person (s 40) or apply to the Tribunal for consent (s 42) confirm the purposive meaning of “treatment” as used in this part of the Act. Sections 40 and 42 require that the following information shall be specified in the request or application, as the case may be:

(b) the particular condition of the patient that requires treatment,

(c) the alternative courses of treatment that are available in relation to that condition,

(d) the general nature and effect of each of those courses of treatment,

(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f) the reasons for which it is proposed that any particular course of treatment should be carried out.

46. By s 40(3) the responsible person considering whether to give consent is required to have regard to the matters listed in the preceding paragraph and also to the objects of Pt 5. By s 44(2) the Tribunal when considering an application for its consent is likewise required to have regard to those matters and objects. Bearing in mind that pursuant to s 36 the Tribunal has authority parallel with that of a responsible person to grant consent in relation to major and minor treatment, it is significant that ss 44 and 45 make the following additional provisions concerning exercise of the Tribunal’s power:

44 Tribunal may give consent

(3) Nothing in this section requires the Tribunal to consider an application relating to a patient if it is not satisfied that the applicant has a sufficient interest in the health and well-being of the patient.

45 Restrictions on Tribunal’s power to give consent

(1) The Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.

47. On full consideration of these provisions I am satisfied that neither a responsible person (such as the plaintiff in this case) nor the Tribunal may give consent for medical personnel to extract sperm from an unconscious patient who has not given his own prior consent. O’Keefe J reached that conclusion in MAW v Western Sydney Area Health Service at [51]-[55].

The need for clarification by statute

48. Applications to the Court for some form of order to facilitate sperm extraction, such as the plaintiff’s application in this case, are always made on an extremely urgent basis in the absence of any opposing party who might draw the Court’s attention to a previous decision. Given the infrequency of such applications it will commonly be the case that the judge on duty to deal with urgent applications on a particular day, including after Court hours, will not have previously encountered this obscure area of the law. Where, as here, the application is made by the patient’s next of kin without legal representation the Court will receive no assistance to identify earlier cases. Even if they should be cited or if the judge should find them, the urgency leaves insufficient time for an evaluation of whether other single judge decisions, which are not inherently binding, should be followed. I am not aware of any appellate law in the area.

49. In these situations there will always be great reluctance on the part of the duty judge to defer a decision pending further legal research. Deferral may amount to a decision by default in that the extraction of sperm from a terminal patient is time-critical. The difficult position in which the Court is placed in having to decide these urgent matters cannot in my view be alleviated by treating the orders made as merely interlocutory. I respectfully agree with O’Keefe J that to give judicial authorisation for the procedure or to declare that a responsible person may give consent is not in substance an interim determination: MAW v Western Sydney Area Health Service at [3]. Such an order or declaration is followed by execution of a final nature, namely, the carrying out of the otherwise unlawful physical interference with the patient.

50. In connection with applications for orders authorising the removal of sperm from the body of a deceased person, wherein similar difficulties arise from urgency and the absence of counsel’s assistance, the courts of other States have treated decisions of this nature as merely interlocutory. Indeed, on occasions the legal foundation for making the orders has been identified as the perceived interim nature of the relief and its ancillary and procedural role as an adjunct to subsequent substantive determination of whether the retrieved sperm may be used. See for example Re Denman [2004] 2 Qd R 595; [2004] QSC 70; Fields v Attorney-General of Victoria[2004] VSC 547; Y v Austin Health (2005) 13 VR 363; [2005] VSC 427; S v Minister for Health (WA) [2008] WASC 262; Re Floyd [2011] QSC 218; Re H, AE [2012] SASC 146; Ex parte application of Mercedi Cooper [2018] NSWSC 766.

51. I am respectfully unable to agree with the characterisation of orders permitting removal of sperm from a corpse as interlocutory, or to extend that characterisation to orders for such removal from an unconscious patient. Such orders alter rather than preserve the status quo. Orders of this type cannot in my view be seen as merely preserving the physical subject matter of future litigation. The sperm which is thought to require preservation cannot exist in the first place, as material separate from the human body, without either a contravention of the law or an order which alters, rather than preserves, the situation governed by the law.

52. In my view the factors of urgency and lack of opportunity to research the applicable law in applications concerning sperm removal have led to this Court on several occasions declaring that a responsible person may give consent for extraction, or ordering directly that such extraction may be performed (as in my own decision in Ping Yuan v Da Yong Chen [2015] NSWSC 932). However, my view, arrived at with the benefit of submissions and reference to authority from senior counsel representing the Attorney General in this case, is that there is no foundation in law for such relief.

53. It does not follow that what has been done under such orders, either in this case or in previous cases, has been unlawful. As this is a superior court of general jurisdiction, if its orders are subsequently shown to have been made in error they are nevertheless not nullities. In Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 Rich J said (at 590):

It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside (Baron Martin advising the House of Lords in Scott v Bennett (1871) LR 5 HL 234 at 245); Revell v Blake (1873) LR 8 CP 533 at 544 (where Blackburn J draws the distinction between a superior and an inferior court in this respect).

54. See also Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23; New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]. Garling J’s orders 1, 2 and 3 (quoted at [6]) were effective to authorise a procedure in accordance with their terms. The orders are spent and there is no application to set them aside. Even if there were, the orders could only be dissolved prospectively and what was done under them while they stood would not be rendered unlawful.

55. Orders facilitating sperm extraction, either from unconscious patients or deceased persons, have now been made by single judges of this Court on several occasions, always under the adverse conditions of decision-making to which I have referred. Such orders have also been made by single judges of the Supreme Courts of other States, where legislation having some features in common with the New South Wales statutes is in force. Judges in the other States have also repeatedly adverted to the difficulty of identifying the applicable principles of law and the pressure of time under which this has to be done in such applications. See for example AB v Attorney-Generalof Victoria [2005] VSC 180 at [106]; Re H, AE at [8]-[11]; Re Cresswell [2018] QSC 142 at [3].

56. Hospital medical and legal staff could not fairly be expected to find and consider the possibly relevant statutes and the judicial decisions upon them in order to work out for themselves whether the law permits sperm retrieval, or whether the spouse of an unconscious man can give effective consent or whether a Court order can be made and should be sought. When next of kin request such a procedure neither the hospital staff with their professional responsibilities nor the spouse or relatives in the emotional distress of the situation should be put in the position of having to apply to the Court to obtain an answer. The present state of affairs calls for legislative intervention to enact a clear rule as an amendment to a statute where it may readily be found, such as the Assisted Reproductive Technology Act.

57. If Parliament should resolve to enact such a rule without altering the current law as I have sought to explain it, the rule would be to the effect that removal of sperm from an unconscious patient who had not given his own consent prior to losing consciousness is not permitted and cannot be effectively consented to by any other person nor approved by the Court. To avoid factual disputes about consent, it should be made clear that only consent in writing would suffice. If it is the judgment of Parliament, weighing up moral and social considerations which are its province, that the law should be changed to permit sperm extraction from an unconscious patient irrespective of his consent, then there should be prescribed precise conditions as to who may require the extraction and in what circumstances or under what conditions, leaving no element of evaluation or judgment for resolution by any tribunal or decision-maker. The circumstances in which an extraction is sought to be carried out on an unconscious and terminal patient do not permit of any degree of complexity or delay in the decision-making process.

5. Authority for sperm extraction from a deceased male

58. There does not appear to me any legal foundation for the Court to make an order authorising removal of sperm from a deceased male body in New South Wales. Subject to the operation of s 23 of the Human Tissue Act, considered below, such removal would constitute an offence against s 36(1) of the Human Tissue Act and also against s 81C of the Crimes Act 1900 (NSW), at least in the particular of offering “indignity” to the body: Re Gray at [17]. In that case Chesterman J showed that at common law a person in possession of a dead body may deal with it only to provide decent interment and that if the legal representative or next of kin have any entitlement to possession it is only for that purpose (at [12]-[21]).

59. Part 2 of the Act is concerned with donations of tissue by living persons. By force of s 6 that Part is expressly not concerned with ova, semen or foetal tissue. Part 4, comprising ss 23-27A, is concerned with removal of tissue after death. It is not affected by s 6 or any equivalent section and therefore applies to removal of sperm “except in so far as the context or subject-matter otherwise indicates or requires”.

60. Again subject to the operation of s 23 of the Human Tissue Act, sperm removal from a deceased body would contravene s 36(1) of that Act (considered above at [13]-[2016]). Section 36(1) prohibits removal of tissue, which as earlier explained includes sperm, from the human body “whether living or deceased”. In the absence of written consent of the deceased person sufficient for the purposes of the Assisted Reproductive Technology Act, the exception in s 34(1)(b4) (quoted at [16]) is inapplicable. No other specific exception to s 36(1) is applicable. The possibility of lawful removal of sperm from the corpse of a man who has not left written consent for this therefore turns upon whether a “designated officer” may approve the procedure.

61. Part 4 of the Human Tissue Act prescribes the decision-making power of designated officers, being persons appointed for the purpose of the Act by the governing bodies of hospitals pursuant to s 5. Omitting portions which refer to deceased children and are presently irrelevant, s 23 is in these terms:

23 Authority to remove tissue where body of deceased at a hospital

(1) If a designated officer for a hospital is satisfied, after making such inquiries as are reasonable in the circumstances in relation to a person who has died in the hospital or whose dead body has been brought into the hospital, that:

(a) the person had, during the person’s lifetime, given his or her consent in writing to the removal after that person’s death of tissue from that person’s body for the purpose of:

(i) its transplantation to the body of a living person, or

(ii) its use for other therapeutic purposes or for medical purposes or scientific purposes, and

(b) the consent had not been revoked,

the designated officer may, by instrument in writing, authorise the removal of tissue from that person’s body in accordance with the terms and any conditions of the consent.

…

(3) If the designated officer is not satisfied as to the matters referred to in subsection (1), […], and the designated officer is satisfied, after making such inquiries as are reasonable in the circumstances in relation to the deceased person, that:

(a) the deceased person had not, during the person’s lifetime, expressed an objection to the removal of tissue from the person’s body after the person’s death or, if the person had expressed such an objection, based on the most recent views expressed by the deceased person, the person no longer had an objection to the removal of tissue from the person’s body, and

(b) a senior available next of kin has given his or her consent in writing, or in any other manner prescribed by the regulations, to the removal of tissue from the person’s body, and

(c) there is no next of kin of the same or a higher order of the classes in paragraph (a) or (b) of the definition of senior available next of kin in section 4 (1) who objects to the removal of tissue from the person’s body,

the designated officer may, by instrument in writing, authorise the removal of tissue from the deceased person’s body in accordance with the terms and any conditions of the consent referred to in paragraph (b).

62. Section 24 makes similar provision with respect to the body of a person lying in a place other than a hospital, but in that case the power to authorise removal of tissue where there is no written consent is conferred upon the senior next of kin rather than a designated officer. I will confine consideration to s 23 but my conclusions are in principle equally applicable to s 24.

63. In subs (1)(a)(ii) of s 23 the expression “medical purposes or scientific purposes” is wide enough to include use in assisted reproductive procedures. “Therapeutic purposes” corresponds with the purposes of “treatment” with which Pt 5 of the Guardianship Act is concerned, discussed earlier in this judgment. But “medical purposes or scientific purposes” is a description used in s 23 of the Human Tissue Act as an alternative to, and in a sense different from, purposes of therapy or treatment. In Re Estate of Edwards (2011) NSWLR 198; [2011] NSWSC 478 R A Hulme J considered the meaning of “medical purposes” in s 23 and held that the expression includes assisted reproductive technology (at [32]). This interpretation is also supported by decisions of the Supreme Courts of other states on statutes dealing with similar subject matter: GLS v Russsell-Weisz [2018] WASC 79; Y v Austin Health; Re Cresswell at [65]-[77].

64. Provided the deceased person has given during his lifetime written consent for posthumous removal of his sperm, including an expression of his wishes regarding its use, the designated officer may be able to authorise the removal under s 23(1) without creating any potential conflict with the Assisted Reproductive Technology Act. Section 17 of the latter Act contains these subsections:

17 Giving, modifying and revoking consent

(1) A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice setting out the gamete provider’s wishes in relation to the gamete (the gamete provider’s consent).

(2) A gamete provider’s consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider.

65. These provisions would have to be taken into account by the designated officer in making a decision under s 23(1) of the Human Tissue Act. The designated officer would need to be satisfied that the donor’s written consent clearly covered any proposed storage, supply or usage of his sperm. Otherwise, by authorising its extraction the officer might create a situation in which, immediately upon the sperm being recovered, some person would be in breach of the Assisted Reproductive Technology Act because the deceased’s written authorisation was not adequate to cover storage or other dealing with the material.

66. The Assisted Reproductive Technology Act has a more significant impact upon the field of operation s 23(3) of the Human Tissue Act, which is engaged where the deceased person has not given written consent for removal of tissue (including sperm). If a designated officer purported to authorise under s 23(3) the removal of sperm from the deceased body of such a person, anyone acting upon that authorisation would be in immediate breach of s 25 of the Assisted Reproductive Technology Act:

25 Storage of gametes or embryos

(1) An ART provider must not store a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.

Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.

67. For the purposes of applying s 4(2A) of the Human Tissue Act (quoted at [14] above) I would not conclude that the “context” in which s 23(3) appears indicates that the subsection is inapplicable to the extraction of sperm. That is because I take the word “context” in 4(2A) to refer only to the setting of s 23(3) in the Human Tissue Act, not in the whole body of legislation of this State including, for example, s 25 of the Assisted Reproductive Technology Act.

68. However, s 4(2A) of the Human Tissue Act also requires consideration of whether the “subject-matter” of s 23(3) indicates that it is inapplicable to extraction of sperm. Storage of extracted sperm requires sophisticated cryopreservation facilities which, it may be inferred, are available only to persons who (or organisations which) are in the business of providing assisted reproductive technology services for fee or reward. Any such person or organisation would fall within the definition of an ART provider and be subject to the prohibition in s 25 of the Assisted Reproductive Technology Act. In these circumstances it is my view that s 23(3) of the Human Tissue Act cannot have been intended by Parliament to empower a designated officer to authorise under s 23(3) the removal of sperm from the deceased body of a person who had not given written consent. Such an authorisation would be futile and ineffective because anyone acting upon it would be in immediate breach of s 25 of the Assisted Reproductive Technology Act.

67. If I am wrong in this interpretation, at least it may confidently be said that, having regard to the illegality of storage of extracted sperm in the absence of a written consent under s 17 of the Assisted Reproductive Technology Act, a designated officer could not reasonably exercise the discretion conferred by s 23(3) of the Human Tissue Act to authorise extraction where no written consent was given. Such a decision would be unreasonable in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). Whilst s 23(3) appears on its face to be in wide enough terms to allow for removal after death of any kind of human tissue including organs and gametes without the deceased’s written consent, the discretion could not be exercised reasonably and validly with respect to gametes.

68. In Re Estate of Edwards R A Hulme J assumed (at [32]-[33]) that a designated officer could approve sperm removal from a corpse pursuant to s 23(3) of the Human Tissue Act but did not have to decide this as the Attorney General conceded that the Act provided for “properly authorised removal” of sperm (at [40]). In any event his Honour was able to dispose of that case of without determining whether the ex parte orders for removal were properly made (at [38]).

69. In AB v Attorney-General of Victoria Hargrave J considered a Victorian section very similar to s 23(3) of the Human Tissue Act, which prohibited removal of tissue from the body of a person, whether living or dead, except in accordance with a consent or authority as provided for in the Act. His Honour found this prohibition “inconsistent with any suggestion that the common law authorises a court to permit the removal of tissue from a corpse in circumstances where there is not, under [the Act], sufficient authority for that removal” (at [121]). Accordingly, where there was no consent or authority in accordance with the Act, his Honour held that an urgent ex parte order authorising the removal sperm should not have been made. I consider the position to be the same under the Human Tissue Act.

70. On the facts of the present case prior written consent of the deceased was a critical pre-requisite to obtaining the designated officer’s authorisation under the Human Tissue Act and was absent. Garling J was not asked to declare that the designated officer could authorise the procedure because the ex parte application was made to him while Mr Chapman was still alive and, therefore, before s 23(3) of the Human Tissue Act could have had any relevance. Understandably Mr Chapman’s next of kin were not aware that his death after the orders had been made had a bearing on which Act of Parliament applied. They did not apply for new orders or confirmation of the old in the changed circumstances. They cannot be criticised for that.

71. My observations in [48]-[52] and [55]-[57] above concerning the need for an unequivocal statutory rule regarding sperm recovery from unconscious patients apply equally to such recovery from dead bodies. It is undesirable that hospital staff should be left to fathom what Parliament may have intended by first providing that a designated officer may authorise removal of human tissue, generally and including sperm, from a dead body, notwithstanding the absence of written consent (s 23(3) of the Human Tissue Act) and then enacting in the Assisted Reproductive Technology Act a prohibition upon storing or doing anything else with the material. It is likewise undesirable that such professional staff, or the next of kin of a deceased person, should be put to the task of finding a report of this or any other judicial decision which might be thought to resolve the relationship between the two statutes or that they should need to make an application to the Court to clarify the position.

72. Again, if Parliament should desire to maintain the current state of the law there could be added to the Assisted Reproductive Technology Act or to the Human Tissue Act a simple statement that removal of semen from a dead body is prohibited unless the deceased had during his lifetime given written consent, sufficient for the purposes of the Assisted Reproductive Technology Act. If it should be desired to change the law so that sperm might be removed from a dead body in the absence of such written consent, explicit and definitive prerequisites could be prescribed to eliminate dispute or any need for hospital staff or next of kin to approach the Court.

6. The effect of the duty judge’s orders in this case

75. Garling J’s order 1 (quoted at [6] above) was made on the basis of the facts as they stood at the time which included that Mr Chapman was still alive. That order was not wide enough to give authority for the removal of sperm after Mr Chapman had died, as occurred. However, orders 2 and 3 were of sufficient breadth to authorise what occurred. For the reasons given at [53]-[54] the recovered sperm samples were lawfully obtained and are at present lawfully stored notwithstanding my conclusion that as a matter of law the orders should not have been made.

7. Release of the sperm for removal to another jurisdiction

76. In Re Estate of Edwards cryopreserved sperm had been removed from the dead body of the plaintiff’s husband pursuant to an ex parte order made shortly after death. R A Hulme J concluded that the steps taken to preserve and store the sperm after removal from the body were sufficient to have given it the character of property. In this his Honour followed the reasoning of the majority of the High Court in Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45. As mentioned earlier his Honour found that the sperm sample had been lawfully removed pursuant to a valid Court order. Sufficient work and skill had been lawfully applied to it, in preserving and storing it, to constitute it the property of the widow at whose behest the work and skill had been applied: Re Estate of Edwards at [82].

77. Neither the applicability of this approach nor the authority of Doodeward v Spence was contested by the Attorney General in the present case. Indeed it was submitted that R A Hulme J’s reasoning should be followed in this regard. With respect I agree. His Honour’s decision has been followed by the Supreme Courts of other states: see Re Cresswell at [163]; GLS v Russsell-Weisz at [114]-[125]; Re H, AE (No 2) [2012] SASC 177 at [60]. Applying Re Estate of Edwards to the present case, it is clear that the prerequisites for accrual to the plaintiff of proprietary rights over Mr Chapman’s sperm have been satisfied. Pursuant to Court orders, the sperm was lawfully removed and work and skill were applied in cryopreserving the sample, all for the plaintiff’s purposes and on her behalf. No one apart from the plaintiff would have any interest in it. Prima facie, therefore, the plaintiff is entitled to the declaration she seeks, namely, that she is entitled to possession of the sperm.

78. Section 21 of the Assisted Reproductive Technology Act, which has been referred to earlier in these reasons is, provides as follows:

21 Supply of gametes or embryos to another person

An ART provider must not supply a gamete or an embryo to another person (including another ART provider) except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent.

Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case.

79. The objection that the first defendant giving possession of the sperm sample to the plaintiff would constitute a “supply” contrary to s 21 is in my view answered by the holding of R A Hulme J in Re Estate of Edwards at [139] that a transfer of possession from a bailee to the rightful owner would properly be characterised as a release relinquishment or surrender. Similarly, if the plaintiff should cause the sample to be collected by her transport agent for removal interstate and if such removal should occur, that would not constitute “export” by the first defendant in contravention of s 22 of the Act: Re Estate of Edwards at [140].

80. I respectfully agree with his Honour’s conclusion on this point and with the reasoning which supports it. The ordinary usage of “supply” would not extend to a bailee handing over an item of movable property in the circumstances. Similarly the ordinary usage of “export” would not include such handing over merely on the basis that the immediate recipient is an agent of the owner who will cause the item to be moved out of the jurisdiction at the owner’s direction. Particularly as these are penal provisions it is not justified to extend the meaning of the words beyond their ordinary usage. The objects of the Act, set out in s 3, provide no support for an extended meeting. One of the objects is “to prevent the commercialisation of human reproduction”. There is no element of commercialisation involved in what the plaintiff proposes to do with this sperm, such as to warrant giving the relevant words an extended meaning.

81. The Attorney General submitted that doubt may arguably be cast upon the conclusion in Re Estate of Edwards because his Honour did not address the definition of “ART provider” given in s 4(1):

ART provider means a person who provides ART services and includes a registered ART provider …

82. Under that definition any person providing ART services is an ART provider, whether registered or not. “ART service” is defined to include:

(b) the storage of gametes and embryos for use in ART treatment,

(c) the obtaining of a gamete from a gamete provider for use in ART treatment or for research in connection with ART treatment.

83. By force of these definitions in combination with ss 21 and 22, it is submitted by the Attorney General that any person or entity who or which obtains sperm samples for use in assisted reproductive technology treatment or for storage is an “ART provider” and is prohibited from using, supplying, exporting or storing the gametes without the gamete provider’s written consent. It is not necessary for me to examine the extent to which R A Hulme J had regard to those definitions. Whatever significance they may have had on the facts of Re Estate of Edwards, I do not consider that they are any impediment to what the plaintiff wishes to do under appropriately limited orders in the present case.

84. A suitably equipped transport company collecting the sperm on the plaintiff’s behalf from the first defendant would neither be obtaining it “from a gamete provider” (item (c) of the definition of “ART service”) nor undertaking storage of the product (item (b)). The definition of “ART service” does not expressly include transportation of gametes and I see no basis for giving any of the words used in the definition an expanded meaning to embrace that function.

85. On the facts of this case I do not consider that the plaintiff would herself become an ART provider as a result of a transport company on her behalf collecting sperm for movement interstate. She is not proposing to provide any ART services to anyone. Not being an ART provider she is not prohibited from exporting the product by the terms of s 22. Restriction of the application of ss 21, 22, 25 and other sections in Pt 2, Div 3 of the Act to providers of ART services, only, is consistent with the object of the Act to prevent commercialisation of human reproduction.

86. The grant of declaratory relief is discretionary. The possibility of infringement of the Assisted Reproductive Technology Act is the only matter that was suggested in argument as relevant to be taken into account adversely to the exercise of the discretion. For the reasons given at [78]-[85] above this potential adverse consideration can be disposed of by making orders limiting what may be done with the sperm sample which will ensure there is no such infringement.

8. Orders

87. It follows that whilst the plaintiff may have the declaration of entitlement to possession of the sperm sample as claimed by her, that can only be granted upon the basis that the sample is to be dealt with in a manner much more restrictive than what is envisaged by the second and third orders claimed (see [8] above). I will frame an order in terms intended to avert any infringement of the Assisted Reproductive Technology Act. For the most part the orders made by Garling J on 28 March 2018 are spent and there is no need to discharge them. Orders 5 and 6, however, will be varied by an order which prescribes the manner in which the plaintiff may have the sperm sample removed from the first defendant’s custody and what she may do with it. When the parties have considered these reasons and the declaration and order that I make, I will hear any application for costs. My preliminary view subject to submissions is that the parties should all bear their own costs.

88. The orders of the Court will be:

1. It is declared that the plaintiff is entitled to the possession of the sperm recovered on 28 March 2018 from the body of her late husband Joel Chapman, subject to orders (2) and (3).

2. Orders 5 and 6 made by Garling J on 28 March 2018 are varied to the extent that the first defendant is hereby ordered to deliver up possession of the said sperm to the plaintiff but only upon the plaintiff causing a suitably equipped transportation company or courier to collect it on her behalf from the first defendant on consignment for transportation to a storage facility in either Tasmania, the Australian Capital Territory or the Northern Territory.

3. If collection pursuant to order (2) has not taken place by 10 December 2018 the first defendant is to destroy the sample.

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Amendments

13 August 2018 -
[3]:
At 6, delete [76] substitute [75].
At 7, delete [77]-[86] substitute [76]-[86].

[70]: delete 'RA Hume' substitute 'R A Hulme'.

Decision last updated: 13 August 2018