Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C

This urgent application was heard by Edelman J in the Supreme Court of Western Australia on 29 December 2012. Ms C, the widow of a deceased man, sought orders for the removal and storage of spermatozoa and associated tissue from her recently deceased husband. Ms C intended to use the spermatozoa for a future in vitro fertilisation procedure. The Supreme Court of Western Australia had jurisdiction to hear the application under s 22 of the Human Tissue and Transplant Act 1982 (WA). The court was required to decide whether an order for the removal of spermatozoa could be made under O 52 r 3 of the Rules of the Supreme Court 1971 (WA). Edelman J concluded that the difficulties in relying on O 52 r 3 as a source of power for the court's orders made it preferable to rely on the legislative regime established by the Human Tissue and Transplant Act. Section 22 of the Act provides that a designated officer for a hospital may, subject to and in accordance with the Act, authorise the removal of tissue from the body of a deceased person in hospital for therapeutic, medical or scientific purposes. Section 22 also provides that a designated officer may authorise the removal of tissue from the body of a deceased person where, after making inquiries, the designated officer is satisfied that the deceased person during his lifetime expressed the wish for, or consented to, the removal of tissue from his body for a purpose or a use referred to in s 22(1) and had not withdrawn the wish or revoked the consent. Edelman J concluded that the designated officer for the hospital in this case had the power to authorise the removal of tissue from Ms C's deceased husband for medical purposes. Orders were made permitting the removal and storage of the spermatozoa and associated tissue from the deceased person. Edelman J explained that in future, to ensure that requests for the removal of spermatozoa from deceased persons are dealt with expeditiously, any request for extraction of spermatozoa should be directed by the hospital to the designated officer.