In the matter of an Application by Adams (a pseudonym) [2020] NSWSC 1670

Supreme Court of NSW|2019-08-14|Before: Walton J

Solicitors: Buttar, Caldwell & Co (Plaintiff) File Number(s): 2019/253741

INTRODUCTION

On 14 August 2019, the body of the late Grant Nye ("the deceased") was located at premises situated in the Blue Mountains in New South Wales. The deceased was the husband of Kay Adams ("the plaintiff"). According to reports from police, the deceased hanged himself. According to the information that had been received by the plaintiff during that day, the estimated time of death was between 10.00am and 12.00pm on 14 August 2019.
Discussions took place throughout the day between the plaintiff and the police as well as certain persons of the coroner's office regarding whether or not steps could be taken to extract sperm from the deceased for the purposes of a subsequent in vitro fertilisation procedure that the plaintiff would undertake in due course.
Late in the afternoon on 14 August 2019, the plaintiff and other members of her family contacted solicitors at Buttar Caldwell & Co, regarding what steps could be taken to seek an order that the sperm of the deceased be extracted and preserved for future implantation.

FACTUAL BACKGROUND

The plaintiff read two affidavits, one of herself sworn the evening of the hearing and one from her solicitor Ms Wajiha Ahmed which established a number of background facts as to the basis upon which orders may be made on an ex parte basis for the extraction procedure sought in a summons filed in Court.
The plaintiff was 27 years of age. She had met the deceased in July of 2009 and was engaged to him in 2012. They were married on 10 October 2015.
In 2017, the plaintiff had been diagnosed with endometriosis, however that condition had responded well to treatment and the plaintiff and the deceased had spoken about having a family next year.
The plaintiff gave evidence that she had a conversation with the deceased in May 2019 when a work colleague had died on a job site. In that circumstance it was agreed that, in the event that a similar fate was to befall the deceased there may be a freezing of sperm. The deceased and his wife discussed the extraction of sperm within 24-hours after death. The plaintiff also said that, if anything should ever happen to her, that her ovum would be frozen in a similar procedure.
The plaintiff expressly stated that starting a family was an important part of the deceased's life and she wanted to honour his wishes and accordingly sought orders from the Court.
Ms Ahmed gave evidence in the affidavit that she swore that she had made contact with a specialist medical practitioner, Dr Ying Li, who was capable of performing the extraction procedure who, together with others, would be able to attend upon the Lidcombe Morgue at 9.00am on 15 August 2019 to ensure that the extraction procedure took place expeditiously and thereafter the sperm would be housed in a proper facility for the purposes of future implantation or insemination.
Dr Li, a Vishy Medical Officer for women and babies at Royal Prince Alfred Hospital in Camperdown who specialised in obstetrics and gynaecology (with a sub-specialty in reproductive endocrinology and fertility) opined that, based on the age of the deceased and the ability to extract sperm, the optimum time for viable sperm extraction was 24 hours from the death of the deceased. He further opined that after 24 hours the viability, amount and quality of sperm decreases "drastically".

THE APPLICATION

By a summons filed in court on 14 August 2019, the plaintiff sought primary relief in the form of an order authorising the performance of a procedure at Lidcombe Morgue by Dr Ying Li to extract the semen of the deceased and store the semen in an assisted reproductive facility.
The relief claimed is extracted below: 1. A Declaration that the Plaintiff is entitled to possession of the sperm of the late Defendant. 2. An Order that upon the making of these orders, Dr Ying Li and such other persons whom he authorises forthwith perform a procedure at Lidcombe Morgue to extract the semen of the Defendant and store the semen in a an Assisted reproductive facility. 3. An Order that the NSW State Coroner and any authorised officer of the Coroner do all such things and execute all such documents to give effect to Order 2 herein forthwith. 4. An Order that the sperm of the Defendant be stored pending further order at the premises of Dr Li under his care, control and supervision or such other persons as authorised by him at Genea Sydney CBD located at Level 2, 321 Kent Street, Sydney, or such other premises as authorised by him. 5. Direct that these Orders be entered forthwith.
Views have differed over whether such orders are properly characterised as interim or final in nature. In Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 ("Chapman"), Fagan J considered that such orders could not be characterised as interim: [49] … I respectfully agree with O'Keefe J that to give judicial authorisation for the procedure or to declare that a responsible person may give consent is not in substance an interim determination: MAW v Western Sydney Area Health Service at [3]. Such an order or declaration is followed by execution of a final nature, namely, the carrying out of the otherwise unlawful physical interference with the patient. [50] In connection with applications for orders authorising the removal of sperm from the body of a deceased person, wherein similar difficulties arise from urgency and the absence of counsel's assistance, the courts of other States have treated decisions of this nature as merely interlocutory. Indeed, on occasions the legal foundation for making the orders has been identified as the perceived interim nature of the relief and its ancillary and procedural role as an adjunct to subsequent substantive determination of whether the retrieved sperm may be used. See for example Re Denman [2004] 2 Qd R 595; [2004] QSC 70; Fields v Attorney-General of Victoria [2004] VSC 547; Y v Austin Health (2005) 13 VR 363; [2005] VSC 427; S v Minister for Health (WA) [2008] WASC 262; Re Floyd [2011] QSC 218; Re H, AE [2012] SASC 146; Ex parte application of Mercedi Cooper [2018] NSWSC 766. [51] I am respectfully unable to agree with the characterisation of orders permitting removal of sperm from a corpse as interlocutory, or to extend that characterisation to orders for such removal from an unconscious patient. Such orders alter rather than preserve the status quo. Orders of this type cannot in my view be seen as merely preserving the physical subject matter of future litigation. The sperm which is thought to require preservation cannot exist in the first place, as material separate from the human body, without either a contravention of the law or an order which alters, rather than preserves, the situation governed by the law.
Due to the urgency of this situation and the fact that instructions were confirmed to seek the orders at approximately 7.00pm on 14 August 2019, I accepted the submission by counsel for the applicant that there was no time to serve notice on the usual contradictor in these applications, namely, the Attorney-General for New South Wales, or in this case, the State Coroner, both of whom would have been represented by the State Crown Solicitors.
I note the applicant's legal representatives made attempts throughout the evening to try and contact the morgue at Lidcombe to speak with a representative who could pass on to the coroner what the plaintiff proposed to do by way of seeking urgent court orders. This was unsuccessful. An email was also sent to Lidcombe Morgue but there was no reply.

ORDERS

On 14 August 2019, the Court granted the relief sought by the plaintiff. The Court made orders in the following terms: TERMS OF JUDGMENT ORDER MADE BY COURT Upon the giving of consent by the State Coroner the Court declares and orders: 1. A Declaration that the Plaintiff is entitled to possession of the sperm of the late Defendant. 2. An Order that upon the making of these orders, Dr Ying Li and such other persons who he authorises forthwith perform a procedure at Lidcombe Morgue to extract the semen of the Defendant and store the semen in an Assisted reproductive facility. 3. An Order that the NSW State Coroner and any authorised officer of the Coroner do all such things and execute all such documents to give effect to Order 2 herein forthwith. 4. An Order that the sperm of the Defendant be stored pending further order at the premises of Dr Li under his care, control and supervision or such other persons as authorised by him at Genea Sydney CBD located at Level 2, 321 Kent Street, Sydney, or such other premises as authorised by him. 5. Direct that these Orders be entered forthwith.
In more recent proceedings, the question of full reasons was raised for the making of the above orders. These are the reasons for decision.

CONSIDERATION

The deceased, at the relevant time, came under the jurisdiction of the coroner pursuant to the Coroners Act 2009 (NSW). This was due to the fact that the death of the deceased fell within the definition of "reportable death" pursuant to s 6 of the Coroners Act.
Section 6(1) provides: (1) For the purposes of this Act, a person's death is a reportable death if the death occurs in any of the following circumstances: (a) the person died a violent or unnatural death, (b) the person died a sudden death the cause of which is unknown, (c) the person died under suspicious or unusual circumstances, (d) the person died in circumstances where the person had not been attended by a medical practitioner during the period of 6 months immediately before the person's death, (e) the person died in circumstances where the person's death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person, (f) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 and while the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or Mental Health (Forensic Provisions) Act 1990.
In this case, the cause of death, suicide, clearly falls within the scope of s 6(1)(a) in that the death was unnatural. The circumstances of the death may also be considered as "unusual circumstances" within the meaning of s 6(1)(c).
The issue that initially arose on the application was whether or not given the circumstances of the death of the deceased, which immediately came within the jurisdiction of the State Coroner, the Court had jurisdiction, absent the consent of the coroner, to make orders in accordance with the summons for the extraction of sperm from the deceased. That issue fell away given the consent of the coroner discussed below.
The operative statute for the purposes of the making of the application sought by the plaintiff is the Human Tissue Act 1983 (NSW) ("HTA"). Part 4 of the HTA deals with the removal of tissue after death. It set out provisions relevant to the authorisation to remove tissue from a deceased person in certain situations (ss 23, 23A, 24 and 24A) and provides that consent by the coroner is required as a precursor to any authorisation to remove tissue, when it is established that a coroner has jurisdiction to hold an inquest under the Coroners Act (s 25 of the HTA).
Section 25 of the HTA provides: 25 Consent by coroner (1) This section applies to a person in respect of whose death a coroner has jurisdiction to hold an inquest under the Coroners Act 2009. (2) A designated officer for a hospital, a senior available next of kin or a principal care officer shall not authorise the removal of tissue from the body of a person to whom this section applies unless a coroner has given consent to the removal of the tissue. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both. (3) Section 24(1) does not apply in relation to a person to whom this section applies unless a coroner has given consent to the removal of tissue from the person's body. (4) A consent by a coroner under this section may be expressed to be subject to such conditions as are specified in the consent. (5) A consent by a coroner under this section may be given orally and, if so given, is to be confirmed in writing as soon as practicable. (6) A coroner shall, in determining the conditions (if any) to which a consent shall be subject, have regard only to the effect which the removal of tissue from the body of the person to whom the consent relates may have in relation to the conduct of any inquest which a coroner has jurisdiction to hold in respect of that person's death.
Section 25 assumes a situation where the coroner has not concluded the exercise of jurisdiction over the body and the purpose of the section is to eliminate the risk of there being any compromise of any forensic procedures which may hinder the coroner in performing the statutory function of determining the cause of death and making recommendations at an inquest if relevant.
On its proper construction, s 25 of the HTA assumes a state of facts where there is no question that the coroner has jurisdiction over a body. As mentioned above, in this case, there is no doubt that the coroner had such jurisdiction as a consequence of the death being a "reportable death" within the meaning of s 6 of the Coroners Act.
Once within the jurisdiction of the coroner, s 25 of the Act is excited. Pursuant to s 25(2) and (3), the authorisation mechanisms that are referred to in s 24 of the Act, which I will turn to below, have no application unless the coroner has given consent for the removal of the tissue from the person's body.
Section 25(4) provides that the consent may be subject to such conditions as are specified in the consent. In this case the consent given by the coroner was not predicated on conditions. As such, considerations under subs (6) do not arise.
Section 25(5) further provides that the consent may be given orally and "if so given is to be confirmed in writing as soon as practicable".
In this case, at about 11pm, during the course of the hearing the Court discussed the application with the State Coroner, her Honour Teresa O'Sullivan. The State Coroner consented to the removal of sperm from the body of the deceased which procedure was identified as being conducted at approximately 9am the following morning.
Due to the circumstances surrounding the hearing, it was not practicable to receive consent in writing from the coroner at the time of the hearing. At the time of the writing of this judgment it is presumed that the coroner would have, as a matter of regular practice, taken the step of confirming the consent given.

Authority to remove tissue where body of deceased not at a hospital

As earlier observed, the deceased was found at a place other than a hospital and, as at the time of the application before the Court, was situated at Lidcombe Morgue. In light of that fact and the consent provided by the State Coroner, authority to remove tissue is governed by s 24 of the HTA.
Section 24 of the HTA relevantly provides: 24 Authority to remove tissue where body of deceased not at a hospital … (3) If the body of a deceased person is at a place other than a hospital, a senior available next of kin of the person may, by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue from the deceased person's body for the purpose of its transplantation to the body of a living person, or its use for other therapeutic purposes or for medical purposes or scientific purposes. (4) A senior available next of kin must not grant an authority under subsection (3) if it appears to the senior available next of kin, after making such inquiries as are reasonable in the circumstances, that: (a) the deceased person had, during the person's lifetime, expressed an objection to the removal of tissue from the person's body after the person's death unless, based on the most recent views expressed by the deceased person, it appears that the person no longer had an objection to the removal of tissue from the person's body, or (b) another next of kin of the same or higher order of the classes in paragraph (a) or (b) of the definition of senior available next of kin in section 4 (1) objects to the removal of tissue from the person's body. Maximum penalty: 10 penalty units. …
The word "tissue" is defined in s 4 as follows: tissue includes an organ, or part, of a human body and a substance extracted from, or from a part of, the human body.
Section 4(2A)(a) specifically provides "tissue" includes a reference to "semen". It follows that sperm would fall within the inclusive definition, being a substance extracted from the human body.
A "senior available next of kin" is defined by the HTA as including "a person who was a spouse of the deceased person immediately before the deceased person's death": s 4. The plaintiff, as the spouse of deceased at the time of his death, was the most senior available next of kin. (It may be noted, as the application is brought by the spouse, a senior available next of kin, subss (1) and (2) are not enlivened on the present application).
By s 24(3), the plaintiff was required to, "by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue from the deceased person's body for the purpose of its transplantation to the body of a living person". In this respect, before the Court was an affidavit sworn by the plaintiff on 14 August 2019. In that affidavit, the plaintiff deposed, in relation to the orders sought: 12. I recall sometime in May 2019, [Grant] came home from work after someone at his job site passed away from a work related accident. I recall having a conversation with [Grant] with words to the following effect: He said: If anything happened to one of us we need to talk about what steps we would take to have children. I said: I don't want to discuss it. Nothing will happen. He said: It's a good idea to have this discussion. I have done some research and read that you can freeze sperm within 24 hours after someone has passed. I said: I would do everything possible if that happened to you. I know how important and how much you want children. So if anything happened to me you would do the same? He said: Yes of course, I would freeze your eggs. 13. Starting a family was an extremely important part of [Grant's] life. I want to honour his wishes and seek this Honourable Court allow me the opportunity to do so. [Emphasis added.]
In light of the urgency of the proceedings, the above intimation as to an agreement to undertake reproductive procedures in the event of an untimely death of either spouse, together with the express desire "to honour his wishes", when read in the context of the entire affidavit and summons, was accepted as a written instrument by the plaintiff authorising the removal of sperm from the deceased's body for the purpose of its transplantation to the body of a living person, namely, in vitro fertilisation procedure that the plaintiff would undertake in due course.
I consider that authorisation to be sufficient. In any event, it is desirable that in a further formal written instrument be brought in providing express authorisation to remove the sperm from the deceased's body for the purpose of its transplantation to the body of a living person, namely, via a procedure of in vitro fertilisation to be conducted in due course.
I note, in that respect, the words "medical purposes or scientific purposes" are not defined by the Act. I accept, with respect, the view expressed by Fagan J in Chapman at [63] that the expression "medical purposes or scientific purposes" is wide enough to include use in reproductive procedures, which includes in vitro fertilisation.
As to the provisions of s 24(4)(a), I accept the evidence of the plaintiff that the deceased had not, during his lifetime, expressed an objection to the removal of tissue from his body after his death. In fact, on the evidence of the plaintiff, the deceased seems to have expressly contemplated and consented to the removal of tissue from his body.
It should also be noted that, in accordance with s 24(4)(b), there were no other next of kin of the same or higher order the plaintiff. In any event, there was no objection to the orders sought, although as noted the application was made ex parte.
As to the entitlement of the plaintiff to possession of the sperm of the deceased, I note the authorities of Edwards; Re Estate of Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478 ("Edwards") and Chapman.
In Edwards, a judgment of R A Hulme J, delivered after urgent ex parte orders had been made by Simpson J, recorded the fact that the coroner had provided approval for the procedure. Questions were raised by the Attorney General as to the appropriateness of the order made by Simpson J (although noted that the orders were binding: at [38]). Nonetheless his Honour stated (at [40]): [40] Mr Kirk submitted that whether or not the removal of the sperm was legally valid, the Court must accept the facts as they presently are and deal with the present application upon those facts. It was submitted that the legality or otherwise of the removal remains of relevance to the discretion to be exercised. Having said that, the difficulties attendant upon the application to Simpson J were noted, and the concession was made that the requirements in the Human Tissue Act for properly authorised removal of tissue would not seem to have been insurmountable hurdles if there had been a correct understanding of the statutory provisions.
Other judgments, in particular that of R A Hulme J, pointed in favour of the spouse having an immediate right to possession of the sperm to the exclusion of the rest of the world, either in her own right or as Administratrix of the deceased's estate (see Edwards at [90]-[91]). This reasoning was followed by the Supreme Court of South Australia in Re H (No 2) [2012] SASC 177 at [60].
A similar approach following the decision of R A Hulme J was accepted by Fagan J in Chapman at [77] where his Honour found that the accrual to the plaintiff of a proprietary right over the sperm in favour of the plaintiff had been satisfied. It should be noted that in Chapman, Fagan J considered, on the circumstances of that case, that there was no legal foundation for sperm extraction from either an alive or dead person (at [52], [58], [75]). However, it seems that his Honour's conclusion confined itself to situations in which a coroner had not given consent to the removal of the sperm.

CONCLUSION

In a tragic situation such as the one that presented itself on the evening of 14 of August 2019, the Court acted upon an ex parte basis.
In all the circumstances, I found, the plaintiff was authorised to give authority for the extraction and did exercise that authority pursuant to s 24 of the HTA, and the plaintiff is entitled to possession of the sperm.
Although the order was not sought on the evening, given the urgency of the matter, it is nonetheless appropriate now, in a case such as this, to make an order that there be a pseudonym in respect of the name of the widow and the deceased as the Court has undertaken in past cases touching upon sensitive matters involving deceased's persons and the rights of those who are left behind.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020

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