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

[2008] WASC 276

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION: RE SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT ACT 1982 (WA); EX PARTE M [2008] WASC 276

CORAM:   MARTIN CJ

HEARD:   25 NOVEMBER 2008

DELIVERED          :   25 NOVEMBER 2008

PUBLISHED           :  28 NOVEMBER 2008

FILE NO/S:   CIV 2589 of 2008

EX PARTE

M
Applicant

AND

MINISTER FOR HEALTH (WA)
Respondent

Catchwords:

Practice and procedure - Application ex parte by widow for removal and storage of spermatozoa and associated tissue from body of spouse who had recently died - Application under O 52 r 3 Rules of the Supreme Court 1971 (WA) - Whether permissible to make such an order by reference to Human Tissue and Transplant Act 1982 (WA), s 22 and s 27 - Distinguishing order for use of material from orders for removal and storage of that material

Practice and procedure - Suppression order

Legislation:

Coroners Act 1996 (WA), s 10
Human Reproductive Technology Act 1991 (WA)
Human Tissue and Transplant Act 1982 (WA), s 3, s 4, s 22, s 27
Rules of the Supreme Court 1971 (WA), O 52, r 2, r 3

Result:

Application granted
Suppression order made

Category:    B

Representation:

Counsel:

Applicant:     Ms A R Rogers

Respondent:     No appearance

Solicitors:

Applicant:     Andrew Maughan & Associates

Respondent:     No appearance

Case(s) referred to in judgment(s):

S v Minister for Health (WA) [2008] WASC 262

MARTIN CJ: 

(This judgment was delivered extemporaneously on 25 November 2008 and has been edited from the transcript.)

1. In these proceedings the applicant, Ms M, applies for an order that: there be permission for a legally qualified medical practitioner or the designated officer of the Sir Charles Gairdner Hospital within the meaning of s 4 of the Human Tissue and Transplant Act 1982 (WA) forthwith to remove spermatozoa and associated tissue from the body of Mr M; such spermatozoa and associated tissue shall be stored in accordance with the Human Reproductive Technology Act 1991 (WA); and that the spermatozoa and associated tissue so removed and stored not be used for any purpose without an order of this court. The Minister for Health is named as the respondent to these proceedings but as the proceedings have been brought as a matter of urgency, it has not been possible to serve the Minister for Health and accordingly, relief is sought on an ex parte basis.

2. The evidence which I have received from the applicant is to the effect that she is 32 years of age.  Her husband, Mr M, was 29 years of age.  They had maintained a long‑distance relationship for a period of about nine years while living in separate countries.  Mr M moved to Perth in June of this year and the parties were married in October 2008 in Perth.  They have resided together in Perth since June of this year but the relationship is of nine years duration notwithstanding that they have lived in separate countries from time to time.

3. Tragically, yesterday evening Mr M died as a result of a sudden heart attack.  Ms M moves for these orders because she wishes to have the opportunity to undergo in‑vitro fertilisation, perhaps in Western Australia if the law is amended, or perhaps in another jurisdiction where such procedure is lawful.  The advice given to counsel, which has been affirmed by the applicant and which I accept, is to the effect that unless the spermatozoa is removed within 24 to 36 hours of the time of death, it will not be medically possible for it to be used in the manner in which Ms M wishes to use it.  It is therefore essential that if the procedure is to be carried out, it be carried out immediately, and that is the reason why these proceedings are brought urgently and ex parte.

4. The evidence is to the effect that Mr and Ms M have had extensive discussions about having children together.  They had discussed names and the number of children that they were to have and had resolved upon a plan to have two children.  The evidence is also to the effect that Ms M has discussed what should be done after the tragic passing of Mr M with his parents who reside in another country.  Mr M's parents support the application of Ms M and believe that Mr M would have wanted the opportunity to share children with Ms M had he survived to do so.

5. The legal principles pertaining to an application of this kind are conveniently summarised by Simmonds J in the decision of S v Minister for Health (WA) [2008] WASC 262, a decision recently delivered. I accept that that decision accurately records the relevant principles and the law applicable to cases of this kind. I agree with his Honour that the Rules of the Supreme Court 1971 (WA) and in particular O 52 r 2 and r 3, when read with s 22 and 27 of the Human Tissue and Transplant Act, provide sufficient power for the court to make orders in the terms sought. 

6. The purpose of those orders is preservation of material which might be used after subsequent proceedings have been taken and I emphasise that at this stage, all that is sought is an order of the court permitting something to happen which, if it does not happen urgently, will forever preclude any subsequent proceedings of the kind foreshadowed by Ms M. That is precisely the circumstance in which the discretion under O 52 r 3 of the Rules of the Supreme Court ought to be exercised in the absence of any evidence of prejudice to any party.  There seems to me to be no evidence of any prejudice to any party in this case.

7. On the evidence, Ms M is the 'senior available next of kin' within the meaning of that expression in s 3 of the Human Tissue and Transplant Act. I have also been provided with a certificate signed by the Registry Manager of the Coroner's Court of Western Australia which confirms that a person with the delegated authority of the State Coroner has given permission pursuant to s 10 of the Coroners Act 1996 (WA) for the donation of spermatozoa from the body of Mr M. It seems to me therefore that for the same reasons essentially as enunciated by Simmonds J in S v Minister for Health, this is an appropriate case for the making of an order.

8. Application is also made for an order suppressing the names of the parties and of Mr M.  Although the court must be wary of making orders of that kind, there are circumstances in which the interests of justice will require the making of such an order.  A case of this kind is obviously a case of tragic proportions.  It is, I think, in the public interest for people in the position of Ms M to be able to come to the court without fear that their privacy will be invaded by the media at a time of great stress and trauma.  That seems to me to provide a sufficient basis, at least for the time being, for the exercise of the power to suppress the publication of the identity of the parties to these proceedings and of Mr M, and I will make such an order.