Ex parte

[2018] NSWSC 766

Supreme Court

New South Wales

Medium Neutral Citation:	Ex parte application of Mercedi Cooper [2018] NSWSC 766
Hearing dates:	12 May 2018
Decision date:	12 May 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The court authorises post mortem sperm retrieval by way of the taking of such tissue as is necessary from the body of the deceased Mr Samih Zraika by a suitably qualified doctor who meets the approval of the officers of Glebe Morgue. (2) For this purpose, the officers of Glebe Morgue are to make available the body of the deceased for the performance of posthumous sperm retrieval. (3) Officers of the Glebe Morgue are to notify the NSW Police of the performance of the procedure a reasonable time before it takes place. (4) Officers of the NSW Police are permitted to be present at the procedure. (5) The sample obtained is to remain in the custody of the Doctor who performs the operation and it is to be appropriately stored by him or her. (6) No use whatsoever is to be made of the sample by any person until further order of this Court. (7) The proceedings are stood over for directions at 9am before the Common Law Registrar of this Court next Tuesday 15 May 2018 in this Court building. (8) Between now and then the matter may be listed urgently at any time before the Duty Judge.
Catchwords:	CIVIL PROCEDURE – ex parte application for sperm retrieval from body of deceased romantic partner of applicant – medical efficacy of procedure requires utmost urgency – order made authorising extraction and retention of sample by medical practitioner pending further order of the Court
Legislation Cited:	Human Tissue Act 1983 (NSW), Part 4
Cases Cited:	Edwards; Re Estate of Edwards [2011] NSWSC 478 Gonzales v State Coroner of New South Wales [2018] NSWSC 153 MAW v Western Sydney Area Health Service [2000] NSWSC 358 Ping Yuan v Da Yong Chen [2015] NSWSC 932
Category:	Procedural and other rulings
Parties:	Mercedi Cooper (Applicant) Ex parte
File Number(s):	2018/150710
Publication restriction:	Nil

EX TEMPORE Judgment – REVISED

Introduction

1. This matter came into my Duty List today, Saturday 12 May 2018, as a matter of utmost urgency. The situation was that the applicant, Ms Mercedi Cooper, was able to contact indirectly my associate at 10.44 am; we were in a position to convene the Court at 11.20 am; but because the applicant needed to travel a considerable distance to be here, we were not able to actually convene the Court until 12.15 pm or thereabouts.

2. A moment ago I took the unusual step of making my orders first, and only now giving my judgment. As well as that, my associate immediately thereafter informally emailed an unsealed copy of my orders, so that the medical procedures that need to be undertaken can commence to be put in place immediately.

3. Ms Cooper suffered a loss yesterday. She is also unrepresented. My understanding and my ability to reflect on legal questions, it will be appreciated, has been incomplete. Although I did not insist Ms Cooper give evidence on oath, I impressed upon her the absolute necessity for her to be completely frank with me, and I have proceeded on the basis that she has been.

Background

4. Ms Cooper has given me to understand that her romantic partner of a considerable period passed away yesterday at about 1 pm. The transcript will show that the circumstances in which it occurred will, I think, inevitably call for a police investigation, a significant one. Her concern is simply to have a sample of his sperm, so that in the future consideration can be given as to whether she can conceive a child of which he will be the father.

5. She has suggested by way of a document that the medical advice she has been given is that it is urgent indeed: every moment that is lost reduces its efficacy. The best approach medically is to have the procedure done within 24 hours of death, but the outer limit of efficacy is 36 hours, hence the need for great urgency.

Discussion

6. It is not entirely clear to me, in the limited time that I have had available, whether indeed Part 4 of the Human Tissue Act 1983 (NSW) actually applies in these circumstances, but I have made enquiries of Ms Cooper at the least in the spirit of that Act. The transcript will show that she has assured me of the relationship between the two of them, and the fact that there was a distinct possibility that they would have tried to have a child together. She has also told me that the other family members of the deceased, to her knowledge, are perfectly happy for this application to be made.

7. The other enquiry that was made was by my associate, with the consent of Ms Cooper, was with regard to the officers at the Glebe Morgue, and their own contentment with the matter, so long as there was a court order.

8. I also thought it imperative in the circumstances that the police be permitted to be present at the procedure, and Ms Cooper had no opposition to that.

9. Ms Cooper had made her own enquiries as to doctors who might be available to undertake the procedure urgently. As well as that, my associate was informed by the officers at Glebe Morgue that it is possible that they could be able to assist in that regard. Suffice to say the “ball is in the court” of Ms Cooper to ensure that everything in that regard is completely shipshape.

10. In terms of my power to make an order such as this, I think that even if it be the case that the Act to which I have referred does not apply, I am confident that in the parens patriae jurisdiction of the Supreme Court of New South Wales, I do have such a power [I interpolate that, on subsequently reviewing this judgment, I have come to doubt seriously that proposition]. If I be wrong in that, I believe in any event that I have an inherent power to make a mandatory interlocutory injunction.

11. But as I have sought to show, this is not a matter that has permitted me to tarry over the niceties of jurisdiction. And after all, all Ms Cooper is seeking to do is to maintain a present position. It has been made perfectly clear to her, both in our discussions and by my orders, that nothing is to be done with the sample once it is retrieved; that is a question for another day.

12. There has been a degree of case law about legal aspects of such an application: see for example the judgment of O’Keefe J in MAW v Western Sydney Area Health Service [2000] NSWSC 358, and the judgment of Fagan J in Ping Yuan v Da Yong Chen [2015] NSWSC 932. But, unless I am mistaken, those were to do with potential donors who were incapacitated but alive. Here, of course, sadly the potential donor is deceased.

13. As well as that, it is noteworthy that earlier this year Johnson J made urgent orders in similar circumstances in the matter of Gonzales v State Coroner of New South Wales [2018] NSWSC 153. His Honour referred to the judgment of RA Hulme J in Edwards; Re Estate of Edwards [2011] NSWSC 478, which itself referred without demur to an earlier judgment in the same proceedings by Simpson J whereby a similar order was made.

14. It is in those circumstances, and for those reasons, that I made all of the orders that I made a moment ago. It is appreciated by Ms Cooper that the matter must return to Court urgently next Tuesday, 15 May 2018, at 9am. And it is also appreciated by her that, if there is any further urgent need for the assistance of the Supreme Court of New South Wales, she need only contact the Duty Judge’s associate and she will be heard.

Orders

1. The court authorises post mortem sperm retrieval by way of the taking of such tissue as is necessary from the body of the deceased Mr Samih Zraika by a suitably qualified doctor who meets the approval of the officers of Glebe Morgue.

2. For this purpose, the officers of Glebe Morgue are to make available the body of the deceased for the performance of posthumous sperm retrieval.

3. Officers of the Glebe Morgue are to notify the NSW Police of the performance of the procedure a reasonable time before it takes place.

4. Officers of the NSW Police are permitted to be present at the procedure.

5. The sample obtained is to remain in the custody of the Doctor who performs the operation and it is to be appropriately stored by him or her.

6. No use whatsoever is to be made of the sample by any person until further order of this Court.

7. The proceedings are stood over for directions at 9am before the Common Law Registrar of this Court next Tuesday 15 May 2018 in this Court building.

8. Between now and then the matter may be listed urgently at any time before the Duty Judge.

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Decision last updated: 25 May 2018