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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re H, AE (No 3)

Details

AGLC: Re H, AE (No 3) [2013] SASC 196
Case: [2013] SASC 196
Decision Date: 16 December 2013

CaseChat Overview and Summary

The case of Re H, AE (No 3) involved the applicant, B, NJ, seeking to use the spermatozoa of her deceased husband, H, AE, for in vitro fertilisation. The spermatozoa were stored at Repromed, Adelaide Fertility Centre Pty Ltd, and the Genea Clinic in Canberra was to supervise the treatment. The South Australian Supreme Court was tasked with deciding whether the applicant could proceed with using the deceased's spermatozoa under certain conditions and whether the Attorney-General's consent was necessary for an exemption under the Assisted Reproductive Treatment Act 1988 (SA). The court had to consider the legal implications of the deceased's intentions, as expressed to others and in writing, and whether these intentions could be used as a basis for granting the applicant's request.

The primary legal issue was whether the applicant could use the deceased's spermatozoa for in vitro fertilisation without contravening the provisions of the Assisted Reproductive Treatment Act 1988 (SA). The court needed to determine if the deceased's intention to have a family with the applicant could be considered a valid basis for granting the applicant's application. Another issue was whether the Attorney-General's consent was required for an exemption under the Act, and if so, whether such consent had been obtained. The court also had to consider the procedural aspects of the case, including the appropriate storage and transfer of the spermatozoa and the conditions under which the treatment could proceed.

The court found that the deceased did intend to have a family with the applicant and that this intention was evidenced in writing and communicated to others. The court concluded that the deceased's intention was a relevant factor in deciding the applicant's application. However, the court noted that it was for the treatment providers in the Australian Capital Territory to reach their own conclusions on this matter. The court held that the deceased's intention did not automatically entitle the applicant to use the spermatozoa without following the proper legal procedures. Regarding the Attorney-General's consent, the court found that such consent was necessary for an exemption under the Act but was not required to be obtained at that stage of the proceedings. The court granted the application on the condition that the spermatozoa be transferred to the Genea Clinic under the supervision of that clinic, and that the applicant provide written notice to the court and Repromed of the transfer.

The court granted the applicant possession and use of the spermatozoa, subject to specific conditions. These conditions included the transfer of the spermatozoa to the Genea Clinic in Canberra on the applicant’s direction, the provision of written notice to the court and Repromed, and the payment of costs associated with the transfer. The court also ordered that the spermatozoa must only be used under the supervision of the Genea Clinic for the purpose of producing embryos to be implanted in the applicant. Any unused spermatozoa or embryos were to be appropriately stored by the Genea Clinic until further order.

Orders

Orders of the court

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]).

Background

Background to the litigation

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 procedures3.1the 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 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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