Re H, AE (No 3)

[2013] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RE H, AE (No 3)

[2013] SASC 196

Judgment of The Honourable Justice Gray

16 December 2013

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE

HEALTH LAW - ASSISTED REPRODUCTION REGULATION

The applicant applied for a declaration that she is entitled to the possession and use of the spermatozoa of her late husband extracted shortly after his death pursuant to an order of this Court for the purpose of in vitro fertilisation. The applicant had previously made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the Court. The plaintiff applied to the Minister for Health and Ageing to vary the conditions of registration under the Assisted Reproductive Treatment Act 1988 (SA) to enable in vitro fertilisation in South Australia. The request was refused. Following enquiries, the applicant ascertained that in vitro fertilisation could be undertaken at the Genea Clinic in the Australian Capital Territory, subject to receiving material that provided a prima facie case that the applicant and the deceased were planning a family together. The Attorney-General neither opposed nor consented to the relief sought. The parents of the deceased did not oppose the order sought.

Held (granting the application):

(1)  Order made granting the applicant use of the spermatozoa under the control and supervision of the Genea Clinic in a treatment procedure or procedures using the spermatozoa to produce an embryo or embryos to be implanted in the applicant (at [1] and [20]).

(2) Conclusion expressed in Re H, AE (No 2) [2012] SASC 177 that the deceased did intend to have a family with the applicant and that that intention was made known to others and was evidenced in writing. It remains a question for those providing treatment in the Australian Capital Territory to reach their own conclusion on this topic (at [19]).

Assisted Reproductive Treatment Act 1988 (SA), referred to.
Re H, AE (2012) 113 SASR 560; Re H, AE (No 2) [2012] SASC 177; Re YZ and Infertility Treatment Authority (2005) VAR 1; Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198, considered.

RE H, AE (No 3)
[2013] SASC 196

Civil

GRAY J.

1. On 3 October 2013, I made an order allowing the applicant possession and use of the spermatozoa the subject of the within application, in the following terms:

   IN THIS DECLARATION AND ORDER:

   “Spermatozoa” is the spermatozoa and/or tissue removed from the late [H, AE] and as at the date of this Order is held by Repromed, pursuant to the Order of this Court made in this Action on 21 March 2011.

   “Repromed” is the trading name of Adelaide Fertility Centre Pty Ltd operating from 180 Fullarton Road, Dulwich SA 5065.

   The “Genea Clinic” is a fertility clinic operated by Genea Limited from premises at 2 King Street, Deakin, Australian Capital Territory 2600. 

   THE COURT DECLARES AND ORDERS:

   ...

   2.    The Applicant [B, NJ] is entitled to possession and use of the Spermatozoa subject to the following conditions:

   2.1Repromed is to transfer directly the Spermatozoa to the Genea Clinic in Canberra on the Applicant’s direction.

   2.2The applicant provides the Court and Repromed with 7 days written notice of any such direction to transfer the Spermatozoa. 

   2.3On receipt of the written direction, Repromed shall:

   2.3.1after 7 days take such steps as are necessary to deliver the Spermatozoa to the Genea Clinic; and

   2.3.2within 7 days of such transfer, inform the Court in writing of the transfer.

   2.4The Applicant pay the costs of such transfer.

   2.5The Spermatozoa must be used only under the control and supervision of the Genea Clinic.

   2.6The Spermatozoa must only be used in a treatment procedure or procedures using the spermatozoa to produce an embryo or embryos to be implanted in the applicant.

   3.    At the completion of the treatment procedure or procedures

   3.1the Genea Clinic is to appropriately store any unused Spermatozoa until further Order; and

   3.2the Applicant is to advise the Court of any unused Spermatozoa or embryos created by treatment procedure or procedures and seek further directions.

   …

   My reasons for making this order follow.

   Background

2. On 21 March 2011, I heard an urgent ex parte oral application for the removal of spermatozoa from the applicant’s deceased husband and for the appropriate storage of those spermatozoa.  I granted the application and made orders in the following terms:

   -that the Court is prepared to make orders sought by the applicant pursuant to the Court’s inherent jurisdiction;

   -that spermatozoa be removed from the late H, AE deceased;

   -that the process be undertaken at the Forensic Science Centre, Adelaide or such other place as the Coroner directs;

   -that an appropriately qualified medical practitioner perform the procedure;

   -that any spermatozoa or tissue removed from the deceased be stored at an appropriate locator at the direction of the Coroner;

   -that any spermatozoa or tissue removed not be used for any purpose at all without an order of this Court;

   -that the Coroner take steps to appropriately store any removed spermatozoa or tissue.

   I published reasons for making the above order in Re H, AE.[1]

   [1]    Re H, AE (2012) 113 SASR 560.

3. On 12 October 2012, I published reasons in Re H, AE (No 2)[2] concluding that the applicant had made out a prima facie case for the release of the deceased’s spermatozoa to her for the purpose of in vitro fertilisation.  I noted in those reasons that before any declaration and consequential orders were to be made, the Attorney-General should be approached and his consent sought for an appropriate exemption under the Assisted Reproductive Treatment Act 1988 (SA) for the in vitro fertilisation of the applicant. 

   [2]    Re H, AE(No 2) [2012] SASC 177.

4. Following the publication of my second set of reasons, a dispute arose between the applicant and the parents of the deceased.  The solicitors for the parents wrote to the Attorney-General complaining that they had not been consulted in regard to the application.  In the letter they referred to the following paragraphs from my second set of reasons:[3]

   The applicant appears to have given much thought to the realities of being a single parent and to the process of in vitro fertilisation. The applicant has very supportive parents who apparently have indicated a desire to be actively involved in the raising of any child by the applicant. The deceased's parents are apparently of the same mind.

   The applicant owns her home, has a substantial sum in the bank, has other assets and is debt free. She received a death benefit pursuant to the deceased's superannuation policy. She has a strong network of family and friends who are supportive of the within application. The deceased's parents are said to be supportive of the application.

   [Footnote omitted.]

   [3]    Re H, AE(No 2) [2012] SASC 177, [36]-[37].

5. The above observations were drawn from two affidavits of the applicant.  The first, sworn 3 August 2011, relevantly provided:

   I have spoken with the deceased’s parents who are supportive of this application.

6. The second, sworn 7 October 2011, relevantly provided:

   … I have discussed my application with my late husband’s parents and they are totally supportive of it and are well informed of the process.

7. The parents of the deceased expressed disappointment that they discovered the application by chance once the matter was concluded and were not given the opportunity to reflect upon it.  The essence of their complaint was that they did not have the opportunity to be heard.  The applicant disputed the assertions made by the parents of the deceased. 

8. When the Court was informed of the concern of the parents of the deceased, the application was relisted and directions were given that all papers filed in Court and copies of my judgments be served on the parents of the deceased and that they be given notice of the next hearing date of the application.

   The Hearing of the Application

9. On 1 August 2013, the applicant received a letter from the Minister for Health and Ageing.  The letter referred to a request by the applicant to vary the conditions of registration under the Assisted Reproductive Treatment Act.  In the letter, the Minister explained that he had been advised that he did not have the power under the Act to vary the conditions of an assisted reproductive treatment provider’s registration to enable assisted reproductive treatment in this situation.  He further noted that if he had the power to vary the conditions, he would not do so as such a variation would be inconsistent with the policy requirement that the person provided prior consent for the use of their gametes after death.

10. The applicant, having received the letter from the Minister, made enquiries with the Genea Clinic in the Australian Capital Territory as to whether in vitro fertilisation could be undertaken at that clinic.  Associate Professor Stephen Robson indicated that it was possible for the Clinic to provide the requested treatment and explained the procedures that would need to be followed.  The Associate Professor suggested that there would need to be material providing a prima facie case that the applicant and the deceased were planning a family together.

11. On the hearing of the application following the above events, the applicant attended by counsel.  The Attorney-General appeared by counsel and the parents of the deceased attended in person.  The parents advised that they had received a copy of the proceedings, including the affidavit material and the judgments that had been delivered by the Court.  The parents said that they did not oppose the order sought but that they wished to be kept informed regarding the success of the process.  Counsel for the Attorney-General submitted that the Attorney-General neither opposed nor consented to the relief sought. 

12. Unlike South Australia, with its Assisted Reproductive Treatment Act, the Australian Capital Territory does not have specific legislation to regulate the provision of assisted reproductive technology.[4]  Instead, it is a matter for accreditation by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia, which sets the standards for practice.  The Committee requires compliance with guidelines promulgated by the Australian Government National Health and Medical Research Council entitled the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007.  The guidelines do not, however, have legislative force.  As a result, in the Australian Capital Territory, there is no legislated consequence for failing to comply with the guidelines; compliance is relevant for accreditation purposes only. 

    [4]    See Re H, AE (No 2) [2012] SASC 177, [23].

13. Clause 6.15 of the Guidelines applies directly to the use of gametes taken from deceased or dying persons:

    6.15Use of gametes from deceased or dying persons or from persons in postcoma unresponsive state

    When either parent dies before the birth of a child, this is generally regarded by society as tragic in that the child will not know that parent. The facilitation of conception in circumstances where the child born will never know one of his or her genetic parents is, by analogy, a serious act of profound significance for the person born. In addition, state or territory legislation may prohibit the use of gametes after a person has died.

    Clinics must not facilitate use of gametes to achieve pregnancy in such circumstances, unless all of the following conditions are met:

    ·     a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes; or

    ·     a person in a postcoma unresponsive state (‘vegetative state’) prepared clearly expressed and witnessed directions, before he or she entered the coma, consenting to the use of his or her gametes; or

    ·     a dying person prepares clearly expressed and witnessed directions consenting to the use, after death, of his or her gametes; and

    ·     the prospective parent received counselling about the consequences of such use; and

    ·     the use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents.

    6.15.1 As these situations arise infrequently and involve serious ethical issues, clinics should ensure that those involved seek advice and guidance from a clinical ethics committee on the ethical issues raised above and, if necessary, seek advice regarding the application of relevant laws.

    [Emphasis added.]

14. As emphasised above, it is relevant in this case for the Genea Clinic to decide whether the deceased “left clearly expressed and witnessed directions consenting to the use of his … gametes”.  There is an inherent ambiguity in the provision.  It is not clear whether the deceased person must have consented to the use of gametes after death and whether the consent must be in writing.

15. Two interstate decisions have considered the interpretation of clause 6.15.  In Re H, AE (No 2)[5] I considered the Supreme Court of New South Wales decision of Edwards; Re the estate of the late Mark Edwards.[6]  I incorporate by way of reference my discussion of that case.[7]  Relevantly, in Edwards, Hulme J noted the ambiguity in clause 6.15 of the Guidelines but did not need to determine the precise meaning of the guidelines in the circumstances of the case before him.[8]  His Honour proceeded on the basis that it was “possible” that Ms Edwards would be able to obtain assisted reproductive treatment interstate,[9] observing:[10]

    … However, Ms Edwards no longer seeks any approval to undergo assisted reproductive treatment in New South Wales. I have inferred that she will look elsewhere. There is, as I have observed, similar legislation in some States but elsewhere in the Common­ wealth of Australia the provision of such services is governed by the application of the NHMRC Guidelines. I have earlier noted they contain a degree of ambiguity. Moreover, they are not statutory provisions, but are ethical guidelines. With no evidence before me as to how they are applied in practice, I cannot conclude that assisted reproductive treatment will be denied to Ms Edwards elsewhere in the country.

    [5]    Re H, AE(No 2) [2012] SASC 177, [52]-[53].

    [6]    Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198.

    [7]    Re H, AE(No 2) [2012] SASC 177, [52]-[53].

    [8]    Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198, [118].

    [9]    Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198, [118].

    [10]   Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198, [146]:

16. Ultimately, Hulme J was prepared in the context of the New South Wales legislation to make an order granting Ms Edwards possession of the sperm of her late husband.

17. In Re YZ and Infertility Treatment Authority,[11] the Victorian Civil and Administrative Tribunal considered that the requirements of clause 6.15 could be satisfied by factual circumstances similar to the within proceeding.  It was not necessary for the Tribunal to express a concluded view as the application was for permission to export the sperm within the context of the Victorian legislation.  In spite of this, the operation of the guidelines was considered because it had been submitted to be a barrier to permission to export.

    [11]   ReYZ and Infertility Treatment Authority (2005) VAR 1.

18. In Re YZ and Infertility Treatment Authority,[12] sperm was removed from XZ shortly after his death and stored on urgent application of his wife, YZ, to the Supreme Court of Victoria.  The couple had been married for approximately eight years prior to XZ’s death.  On the evidence of YZ concerning the couple’s intentions and evidence from other family members, including XZ’s parents, regarding comments made by XZ before death, the Tribunal found that “prior to his death, XZ had clearly expressed an intention to have a child or children with YZ in the near future”.[13]  The Tribunal further held that directions need not be in writing[14] and observed:[15]

    It follows that the issue of whether a direction has been expressed with sufficient clarity in a particular case will be partly a matter of judgment. In the present case there is ample evidence that XZ wished to have a family with YZ. In other words, there is evidence that XZ wished to produce a child, or children, using the gametes of XZ and YZ. This evidence was clearly expressed and witnessed. In my opinion, it is open for Sydney IVF's Ethics Committee to conclude from this evidence that XZ has consented to the use of his sperm to impregnate YZ even if he has died. …

    The Tribunal noted that the guidelines do not have the same status as a statute and are simply guidelines.[16]

    [12]   ReYZ and Infertility Treatment Authority (2005) VAR 1.

    [13]   ReYZ and Infertility Treatment Authority (2005) VAR 1, [13].

    [14]   ReYZ and Infertility Treatment Authority (2005) VAR 1, [63].

    [15]   ReYZ and Infertility Treatment Authority (2005) VAR 1, [67].

    [16]   ReYZ and Infertility Treatment Authority (2005) VAR 1, [68].

19. In Re H, AE (No 2), I summarised a substantial body of evidence put before the Court to support the submission that the deceased had wished to have a family with the applicant.[17]  I refer in particular to paragraphs [25] to [35] of my reasons.[18]  In those reasons I expressed my conclusion that I was satisfied that the deceased did intend to have a family with the applicant and that that intention was made known to others and was evidenced in writing.  However, it remains a question for those providing treatment in the Australian Capital Territory to reach their own conclusion on this topic.  As earlier noted, the Genea Clinic required the provision of material to make out a prima facie case that the applicant and the deceased were planning a family together.  The Court was informed that the proposed course of treatment could proceed in the Australian Capital Territory.

    [17]   Re H, AE(No 2) [2012] SASC 177.

    [18]   Re H, AE(No 2) [2012] SASC 177, [25]-[35].

20. For the reasons provided above, I was prepared to grant the applicant use of the spermatozoa under the control and supervision of the Genea Clinic in a treatment procedure or procedures using the spermatozoa to produce an embryo or embryos to be implanted in the applicant.