AB (a pseudonym) v Alfred Health [2025] VSC 551

1 On 13 June 2025, the Plaintiff ('AB') made an urgent application to the Practice Court of the Supreme Court of Victoria seeking, inter alia, an order that the Defendant ('Alfred Health'), by a designated officer, be authorised to remove spermatozoa and associated tissue from the body of the deceased, referred to by the pseudonym 'YZ'. The Plaintiff seeks this order so to preserve the tissue by the Royal Women's Hospital and its authorised representatives, until further relief, if any, is sought by her.

2 I made orders addressing the Plaintiff's application in the Practice Court on 13 June 2025, and gave brief oral reasons for those orders. I now publish my reasons in greater detail.

3 It is appropriate that the identities of the Plaintiff and the deceased be protected by the use of pseudonyms and that, subject to any further order, the Court Registry should treat the file as confidential.

4 The Defendant had been notified of the pending application and was legally represented.

5 At the hearing, the Court was informed of the following matters though the affidavits filed and by the submissions made by the parties:

(a) On the evening of 10 June 2025, the deceased, a 38 year old man, died in the Intensive Care Unit at the Alfred Hospital. The deceased had suffered an out of hospital cardiac arrest due to a pulmonary embolism. The deceased's body was being held at the Alfred Hospital's mortuary facility, pending release to the next of kin or authorised person.

(b) The Defendant is a public health service and is incorporated pursuant to s 65P of the Health Services Act 1988 and operates the Alfred Hospital amongst others.

(c) After the death of YZ, and before 13 June 2025, AB had contacted Alfred Health seeking an urgent posthumous spermatozoa retrieval of YZ at the hospital. AB sought this retrieval in order to preserve the possibility of having a child with YZ by the use of his spermatozoa.

(d) AB provided evidence that she fell within the definition of 'domestic partner' and 'senior available next of kin' for the purposes of s 3 of the Human Tissue Act 1982 (Vic) ('Human Tissue Act').

(e) The Defendant's chief medical officer ('CMO'), Dr Kambourakis, received a telephone call on 12 June 2025 from a fertility fellow at the Royal Women's Hospital who informed him that retrieval of live spermatozoa from the deceased could occur up to five days after death.

(f) On 12 June 2025, Dr Kambourakis received a letter from Dr Yuen, CMO of the Royal Women's Hospital, nominating three suitably qualified doctors who were capable of performing the necessary procedure to recover live spermatozoa from the deceased.

(g) Dr Kambourakis, in his capacity as CMO of the Alfred Hospital, advised that the doctors named in the letter from Dr Yuen were suitably qualified and accredited to perform the procedure at Alfred Health if authorised by the Court.

(h) AB sought this retrieval from the deceased without valid pre-mortem consent or instruction from the deceased in accordance with s 26 of the Human Tissue Act.

(i) Alfred Health has adopted a guideline which outlines the legal and clinical issues related to the removal of sperm from a deceased person for the purposes of IVF and the processes for consent and authorisation to be followed in such situations.[1] The guideline identifies the posthumous use of gametes raises complex legal and ethical considerations. Alfred Health's position, as set out in the guideline, is that authorised officers will only exercise the discretion to authorise the collection of sperm from a deceased patient if there is evidence that the deceased patient in life consented in writing to the use of the gametes after their death or use in artificial insemination procedure or, where such consent does not exist, the Supreme Court of Victoria has authorised the removal or directed Alfred Health to authorise the removal.

(j) Thus, in absence of valid consent, Alfred Health, as the custodian of the deceased's body pending release to his next of kin or another authorised person, advised AB that it would not allow the procedure to occur at the Alfred Hospital, in the absence of an order from the Court under s 26 of the Human Tissue Act.

(k) YZ was an organ donor. This consent was proffered, not as a factor supporting the grant of the orders sought, but to assist in satisfying the Court that there was no religious or conscientious objection to the making of a decision under s 26 of the Human Tissue Act.

(l) AB's counsel explicitly instructed that, at this point in time, the application for the posthumous spermatozoa and associated tissue retrieval was merely to preserve the status quo to ensure that there is the possibility of making a future application for the use of the spermatozoa and associated tissue, regardless of the success of a future application.

6 These matters were deposed in the following two affidavits:

(a) affirmed by the Plaintiff dated 13 June 2025; and

(b) sworn by David Ruschema dated 13 June 2025, on behalf of the Defendant.

7 During the hearing, I heard oral evidence from Dr Yuen, CMO of the Royal Women's Hospital. She informed me as to the different procedures available for a spermatozoa and associated tissue removal and advised me as to which method she deemed more appropriate for this circumstance. Dr Yuen then informed me as to the average length of life of spermatozoa, attesting that the spermatozoa can live up to five days, but that it is best for the spermatozoa to be taken within the first 36 to 48 hours as it cannot be guaranteed that past this timeframe the spermatozoa would be viable. Dr Yuen informed the Court that the spermatozoa was reaching the 36 hour deadline, and even then there is certainly a degradation of the quality and quantity of the spermatozoa that is retrieved.

8 Dr Yuen confirmed that the spermatozoa would be transported by a doctor or an authorised medical transfer service, to be stored at the Royal Women's Hospital until such application was made to use the spermatozoa.

9 Alfred Health was satisfied as to the suitable qualifications of the doctors that the Royal Women's Hospital had proposed to perform the procedure.

10 Bearing in mind the limited extent to which the Court's intervention was being sought, as set out in [5(l)] above, I have set out the principles and legislative framework which have been applied in the determination of this application.

Human Tissue Act 1982 (Vic)

11 Section 3 of the Human Tissue Act provides definitions for the following relevant terms:

designated officer in relation to a hospital means -

(a) a registered medical practitioner for the time being appointed under section 4 to be a designated officer for the hospital; or

(b) where, in relation to a hospital, there is no such person, the medical superintendent to the hospital or, while he is absent from or not on duty at the hospital, a person acting in his place;

domestic partner of a person means -

...

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person -

(i) for a fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

...

senior available next of kin means -

...

(b) in relation to any other deceased person -

(i) where the person, immediately before the person's death, had a spouse or domestic partner and that spouse or domestic partner is available - the spouse or domestic partner;

...

tissue includes an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.

(4) For the purposes of the definition of domestic partner in subsection (1) -

...

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case ...

12 Section 26 of the Human Tissue Act provides that:

(1) A designated officer for a hospital may, subject to and in accordance with this section, authorize the removal of tissue from the body of a person who has died in the hospital or whose dead body has been brought into the hospital -

(a) for the purpose of the transplantation of the tissue to the body of a living person; or

(b) for use of the tissue for other therapeutic purposes or for medical or scientific purposes -

where -

(c) the deceased person -

(i) had, at any time, in writing; or

(ii) had, during his last illness, orally in the presence of two witnesses -

expressed the wish for, or consented to, the removal after his death of tissue from his body for such a purpose or use;

(d) subject to subsection (3), where the senior available next of kin of the deceased person makes it known to the designated officer that he consents to the removal of tissue from the body of the deceased person for such a purpose or use; or

(e) where the designated officer -

(i) after making such inquiries as are reasonable in the circumstances, is unable to ascertain the existence or the whereabouts of the next of kin of the deceased person; and

(ii) has no reason to believe that the deceased person had expressed an objection to the removal after his death of tissue from his body for such a purpose or use.

13 The Human Tissue Act grants the authorised officer the discretion to authorise the removal of tissue from the body of a person who has died in the hospital for 'medical purposes', if the deceased person's 'senior available next of kin' makes it known to the authorised officer that they consent to the removal of tissue from the deceased person's body for such a purpose or use.

14 There is case law confirming that use of sperm for artificial insemination is considered use for 'medical purposes' under s 26 of the Human Tissue Act.[2]

15 However, I note that these authorities have no relevance to what may be done with the spermatozoa and/or associated tissue once it has been removed. The deceased's consent is relevant to the specific context. That is, the deceased must have explicitly contemplated and explicitly consented to the use of their gametes after they have died.[3] This specific consent is rare and consent to other uses (such as ordinary participation in IVF procedures) is not sufficient.

16 However, as stated above, this application did not and was not intended to be determinative of the outcome of any application to use the tissue. That is not a matter which is to be determined by this proceeding. I do not propose to digress into a discussion concerning any application under the Assisted Reproductive Treatment Act 2008 (Vic) as one has not been brought before me (and, in any event, would need to be the subject of separate proceedings). The purpose of the current application is to preserve that possibility while it is medically possible to do so, thus preserving the status quo, given the time sensitive nature of the procedure for retrieval which was being pursued by AB.

17 Alfred Health did not oppose the Court making a declaration of AB as senior available next of kin for the deceased, but wanted clarification that there was no legal impediment for it to proceed to make the decision under s 26 of the Human Tissue Act.

18 The question before the Court was whether it could be satisfied that AB could be considered YZ's 'senior available next of kin' for the purpose of the exercise of the Defendant's power to authorise the tissue removal sought under s 26 of the Human Tissue Act, and that there was no other impediment to the Defendant making the decision it had foreshadowed to allow the retrieval procedure.

19 The parties recognised, and the Court accepted, that there was a question of jurisdiction as expressed by Cavanough J in P v Melbourne Health.[4] Consequently, the Plaintiff did not seek a mandatory injunction but rather that the Court exercise its declaratory power.

'Purpose' of removal of tissue - s 26(1)(b)

20 Turning now to s 26(1) of the Human Tissue Act, as discussed in Y v Austin Health,[5] I am of the view that the tissue is intended to be used for medical purposes pursuant to s 1(b).

Consent of Deceased - s 26(1)(c)

21 I acknowledge that YZ had not, prior to his death, provided written consent to a posthumous spermatozoa retrieval pursuant to the requirements outlined in s 26 of the Human Tissue Act.

22 Hence, this application has been brought before me to determine whether, for the purposes of s 26 of the Human Tissue Act, AB meets the requirements of a 'senior available next of kin'.

'Senior available next of kin' - s 26(1)(d)

23 Section 3 of the Human Tissue Act defines 'senior available next of kin' as a person who is a 'domestic partner' of the deceased person. Section 3(4) provides guidance in defining whether a person is a 'domestic partner' for the purposes of the definition in sub-s (1). Section 3(4)(b) states as follows:

[I]n determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case ...

24 The relevant matters that were raised before me in determining the nature of the relationship in the present case are:

(a) AB had met YZ through a mutual friend at the Boxing Day cricket test match in 2024. AB and YZ began their relationship on or around 30 March 2025. AB and YZ began having sexual intercourse, neither person used contraception.

(b) On or around 11 April 2025, AB visited her General Practitioner, Dr Majid Mehdipour to undergo fertility testing. On 2 May 2025, AB received her test results, which 'were all within range'.[6] After this appointment, AB shared that the 'test results are fine' with YZ. From that time onwards, AB and YZ continued to have regular unprotected sexual intercourse, tracking ovulation periods.

(c) On or around early April 2025, AB and YZ had discussed a future about living together. However, as of the date of the deceased's death, the couple had not moved in together.

(d) AB has provided a sworn affidavit attesting to the personal and financial support of the relationship.

25 It is evident to me that AB and YZ had the hallmarks of a loving and caring domestic relationship, as detailed in the affidavit submitted to me. I make note that AB and YZ did not use contraception throughout their relationship and had taken initial steps towards pregnancy.

26 I do note that the couple had only been together for a short time and did not cohabitate together, although cohabitation is not a definitive factor of a domestic partnership.[7]

27 During the hearing, there was no dispute raised by the parties or observers (some being friends and colleagues, though no family were present) as to the nature of the relationship as described by AB.

28 Taking all these matters into account, I am of the view that, for the purposes of this application, AB was the domestic partner of YZ, and therefore the senior available next of kin.

Consent of the senior available next of kin - s 26(1)(d)

29 As the deceased person has not expressed his wishes or consented to the removal after his death of the tissue from his body for such a purpose as required by s 1(c), I am required to address s 1(d). As discussed above, I have determined that AB falls within the definition of senior available next of kin and she has expressed to me her consent to the removal of the tissue.

30 Consistent with the reservation expressed by Cavanough J in P v Melbourne Health,[8] the terms of the orders sought will be limited to the declaration made as to satisfaction of the matters which enliven the Defendant's exercise of discretion to authorise the removal of tissue from the deceased pursuant to s 26 of the Human Tissue Act.

31 As set out above, the application is made for retrieval of human tissue in a time constrained environment and goes no further in terms of authorisation than declaring there is no impediment to the Defendant making the decision it indicated to the Court it was prepared to make.

32 Due to the nature of the urgent hearing, and for the limited purposes of permitting the retrieval of human tissue pursuant to s 26 of the Human Tissue Act, I am persuaded that the declarations sought are appropriate. The declaration of the Plaintiff as 'senior available next of kin' is made in these circumstances and for this limited purpose. The orders preserve the opportunity for AB to make an application or bring proceedings which seek permission to use the spermatozoa. If she follows that course, other interested parties would have an opportunity to object or support such an application. This decision ensures that AB has the opportunity to be properly advised, but also to grieve what has been a momentous and tragic event for not only her but the deceased's family. The declaration that the Defendant is empowered to make the decision foreshadowed under s 26(1) of the Human Tissue Act does not direct it to do so. That is a matter for decision by the Defendant but indicates the Courts satisfaction that there is no impediment to the Defendant doing so.

33 Thus, in accordance with the above reasons, on 13 June 2025, I ordered that:[9]

1. In any Court documents filed in this proceeding hereafter, the Plaintiff be referred to by the pseudonym 'AB', and the deceased be referred to by the pseudonym 'YZ'.
2. The Plaintiff file and serve the originating motion, summons and affidavit dated 13 June 2025 by 4:00pm on 20 June 2025.
3. The Court declares that the Plaintiff is the senior available next of kin of the deceased, within the meaning and for the purposes [of] section 26 of the Human Tissue Act 1982 (Vic).
4. Alfred Health, by a designated officer, is authorised to remove sperm and associated tissue from the body of the deceased pursuant to s 26(1) of the Human Tissue Act 1982 (Vic) for the purposes of the preservation of that tissue by the Royal Women's Hospital and its authorised representatives until further order.
5. The proceeding is referred to the General List for administrative mention on 11 July 2025.
6. The costs of the application are reserved.
7. The parties have liberty to apply.

[1] Affidavit of David Ruschena sworn 13 June 2025, Exhibit DR-2 ('Affidavit').

[2] Y v Austin Health [2005] VSC 427, [39]; AB v Attorney-General (Vic) [2005] VSC 180, [118].

[3] As confirmed by the National Health and Medical Research Council in Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical and Medical Practice Research (2007).

[4] [2019] VSC 500, [32], [36].

[5] [2005] VSC 427, [38]-[40].

[7] Relationships Act 2008 (Vic), s 35(1)(c) provides a definition of 'domestic relationship'.

[8] [2019] VSC 500, [32], [36].

[9] Order of Quigley J in AB (a pseudonym) v Alfred Health (Supreme Court of Victoria, S ECI 2023 01072, 13 June 2025), 2.