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[2004] VSC 547
General information, not legal advice.
Supreme Court of Victoria
2004-06-01
COLDREY J
Original judgment source is linked above.
Urgent ex parte application to surgically remove sperm from deceased spouse - Application granted.
HIS HONOUR:
1 This is an urgent application brought before the court by Douglas and Debra Fields, who are the parents of the deceased, Neil Douglas Fields. The purpose of the application is for an order from this court for the removal of spermatozoa and associated tissue from Neil Douglas Fields, who died at approximately 1.00 a.m. on 30 May 2004 as a result of a car accident. The deceased was then aged 23 years. His body is presently at the Coroner's Court in Melbourne.
2 The deceased's wife, Kristie-Lee Fields, is currently in the intensive care unit of the Alfred Hospital as a result of the same car accident and is presently not sufficiently lucid to comprehend the situation in which she finds herself.
3 It appears that the husband and wife were attending the Reproductive Biology Unit of the Royal Women's Hospital in an endeavour to conceive a child. This was the focus of the couple and one of the few comments of the wife, who is apparently aware of her husband's death, was that she will not now be able to have a child by him.
4 The reason for the application is that the Coroner himself, whilst cooperative, does not have the power to order the removal of the spermatozoa and tissue from the body of the deceased. At this stage the Attorney-General, who is the defendant named in the originating motion, has, due to the urgency of the situation, not been served. I say urgency of the situation because the optimum time for the removal of the sperm and tissues is 48 hours from the time of death, but in any event must be accomplished within a further 48 hours from that date.
5 It was put by Ms Sheedy, who appears on behalf of the plaintiffs, that not only they but the parents of the deceased's wife are seeking this order so as to provide a future option for the fertilisation of Mrs Fields, but not in any way as an obligation upon her.
6 These matters are relatively rare and the courts, at least in Victoria, have taken a pragmatic approach to them. For example, some years ago I made a similar order to the one sought today in relation to a husband who was crushed in an industrial accident and at the time of the application was being kept alive on a life support system.
7 In July of 1988, in a case described as AB v. Attorney-General of Victoria, Gillard J also made an order of the type that I am now asked to make. I will assume, therefore, that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out. In his judgment Gillard J adverted to various legislative enactment impinging on this subject matter.
8 The law is not all one way in regard to applications of this type. In the case of Warren Andrew Gray[1], Chesterman J of the Queensland Supreme Court refused to make an order in the circumstances that obtain here. He commented that if the court had a general overriding power to permit reproductive tissue to be taken from a husband's body, it would be a power the exercise of which would be discretionary. At pp.28 and 29 of that judgment he gave reasons as to why he would exercise any discretion adversely to the applicant in that case.
9 Given the urgency in this matter, I do not pause to recite those reasons. It is sufficient to mention that they do have some cogency.
10 Additionally there may be legal impediments to the ultimate fertilisation of the deceased's wife with any sperm or tissue removed. However, that is an issue for another day.
11 The order sought is in the following terms.
(1) That permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of Neil Douglas Fields, deceased, which is presently located at the Coroner's Court at Melbourne.
(2) That such spermatozoa and associated body tissue be stored in accordance with the Infertility Treatment Act 1995.
(3) That such spermatozoa and associated tissue so removed not be used for any purpose without an order from this court.
(4) Any other order that this honourable court deems fit.
12 As I understand the situation, Dr Katherine Stern who has been attending the deceased's wife in the fertility program is supportive of this course and has access to the medical resources required to perform the minor operative procedure necessary. Given that no use can be made of the spermatozoa and associated tissue for any purpose without a further order of this court, I think the position of the Attorney-General, should he ultimately wish to make any submissions in this matter, is sufficiently preserved.
13 It may be, of course, that the deceased's wife will not wish to pursue the matter, but I am of the view that the option should remain open to her, and accordingly I intend to make the order sought in the terms to which I have referred.
14 Do you have a draft copy of the order?
HIS HONOUR: There is one other order I would make under Paragraph 4 and that is, "That the Coroner and the Attorney-General of Victoria be served with a copy of the order and the other documentation without delay." I think I should add as a final part of the order, "(5) Liberty to apply."
[1] reported in (2000) 117 A.Crim.R. 22
Fields
Attorney-General of Victoria [2004] VSC 547