In the matter of an Application by Adams (a pseudonym) (No 2) [2021] NSWSC 794 - NSWSC 2021 case summary — Zoe

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In the matter of an Application by Adams (a pseudonym) (No 2) [2021] NSWSC 794

[2021] NSWSC 794

Supreme Court of NSW|2021-03-15|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-03-15

Before

Walton J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

REASONS FOR JUDGMENT

On the evening of 14 August 2019, Ms Kay Adams (a pseudonym), the plaintiff, made an urgent application to this Court seeking orders for the removal of gametes from the deceased, the plaintiff's late husband, who had died by his own hand earlier that day.
On the same evening (upon the giving of consent by the State Coroner), the Court made orders which permitted the removal of gametes from the body of the deceased and their storage at Genea Limited ("Genea") in Sydney, pending further order: In the matter of an Application by Adams (a pseudonym) [2020] NSWSC 1670 ("Adams No 1"). Those orders were, relevantly, as follows: (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 [deceased] and store the semen in an Assisted reproductive facility. … (4) An Order that the sperm of the [deceased] 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.
By a notice of motion filed on 11 September 2020, the plaintiff sought orders permitting her to transfer the gametes extracted from the deceased's body after his death to the Australian Capital Territory ("ACT") for the purposes of invitro-fertilisation ("IVF") treatment. (Throughout the proceedings "the gametes" were also referred to interchangeably as "the tissue sample" and "sperm").
The Attorney General of New South Wales ("Attorney General") was granted leave to intervene in the proceedings on 12 November 2020, in the absence of an active contradictor.
Cases involving orders sought from the Court in connection with the retrieval of sperm from a person recently deceased typically arise in circumstances of extreme urgency and emotion, usually ex parte, and where the Court often receives only limited submissions from the party or parties involved. Further, such applications sometimes involve (particularly in relation to the subsequent use of such sperm) relatively complex issues in relation to the application of the Human Tissue Act 1983 (NSW) ("the HT Act") and the Assisted Reproductive Technology Act 2007 (NSW) ("the ART Act").

[2]

FACTUAL AND PROCEDURAL BACKGROUND

Ms Adams and the deceased had been in a relationship for around six years by the time they were married in October 2015. She was 28-years-old at the time of the application before the Court.
In 2017, Ms Adams was diagnosed with endometriosis. That condition, however, had responded well to treatment and Ms Adams and her late husband had spoken about having a family in 2018. Ms Adams gave evidence of a conversation she had with her late husband in May 2019, following the death of a work colleague on a job site, in which she recalled her late husband had referred to having done some research about freezing sperm within 24-hours after death. During that conversation, Ms Adams recalled she had agreed to do "everything possible if that ever happened to you".
Ms Adams' evidence was that starting a family "was an extremely important part of [her late husband's] life" and that she wanted to "honour his wishes".
On 14 August 2019, the deceased's body was located, the deceased having taken his own life that day. There was no evidence of the deceased having left a will.
After orders made by the Court on 14 August 2019, the extraction of sperm was successful and Ms Adams' evidence was that the gametes extracted were "viable sperm that [was] capable of being used in a successful [IVF] procedure". The gametes were then stored at Genea, with 14 straws collected. The tissue sample remained stored at Genea.
Ms Adams subsequently made inquiries with Genea and stated that she has been advised that they do not believe that they are permitted to perform a "posthumous IVF procedure" in New South Wales.
Ms Adams made further inquiries with Professor Stephen Robson, a specialist in the ACT, who was willing to undertake the procedure. She was advised by Genea that it required a court order permitting the release of the gametes to a third party. She stated that she would liaise with Genea to organise a suitable transport company to safely transport the gametes from the current storage facility to a storage facility as directed by Professor Robson. Her evidence was that she proposed to commence counselling and the IVF procedure within the next two years.

[5]

Definitions

The following definitions are, relevantly, set out in s 4(1) of the ART Act.
Terms relating to "gamete" are defined as follows: gamete means a human sperm or a human ovum. gamete provider, in relation to a gamete, means the individual from whom the gamete has been obtained and in relation to an embryo, means an individual from whom a gamete used to create the embryo was obtained. … obtain a gamete from a gamete provider includes receive a gamete from a gamete provider.
Terms relating to "assisted reproductive technology" are defined as follows: ART provider means a person who provides ART services and includes a registered ART provider, but does not include a person who provides ART services on behalf of a registered ART provider either under contract or in the course of the person's employment by the registered ART provider. ART service means any one or more of the following services, treatments or procedures that is provided for fee or reward or provided in the course of a business (whether or not for profit): (a) an ART treatment, (b) the storage of gametes and embryos for use in ART treatment, (c) the obtaining of a gamete from a gamete provider for use in ART treatment or for research in connection with ART treatment. ART treatment means assisted reproductive technology treatment being any medical treatment or procedure that procures or attempts to procure pregnancy in a woman by means other than sexual intercourse, and includes artificial insemination, in-vitro fertilisation, gamete intrafallopian transfer and any related treatment or procedure that is prescribed by the regulations. [Emphasis added.]
The definition of "donated gamete" is set out in s 4B(1). It is extracted below: 4B References to "donated gametes" and "donated embryos" (1) A reference in this Act to a donated gamete: (a) is a reference to a gamete donated by a gamete provider for use by a person other than the gamete provider or the gamete provider's spouse, and (b) includes a reference to a gamete used to create a donated embryo (whether or not the gamete was originally obtained from the gamete provider as a donated gamete and whether or not the embryo was originally created for use as a donated embryo).
Genea is a registered "ART provider" within the meaning of s 4(1) of the ART Act. Section 9 of the ART Act provides that the Secretary is to keep a register of all registered ART providers and to cause the contents of the register to be made available on the Ministry of Health's website.

[7]

Use of gametes or embryos generally

Sections 18, 19 and 20 of the ART Act address the use of gametes generally. Those provisions appear below: 18 Use of gametes to create embryo outside a woman's body An ART provider must not use a gamete to create an embryo outside the body of a woman except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case. Note - Section 9 of the Human Cloning for Reproduction and Other Prohibited Practices Act 2003 provides that a person commits an offence if the person intentionally develops a human embryo outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended 19 Use of gametes or embryos in ART treatment An ART provider must not provide ART treatment to a woman using a gamete except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent in relation to: (a) the ART treatment or classes of ART treatment for which the gamete may be used, and (b) the woman or classes of women who may receive ART treatment using the gamete. Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case. 20 Use of gametes or embryos for research An ART provider must not use a gamete or an embryo for research except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. Maximum penalty: 800 penalty units in the case of a corporation or 400 penalty units in any other case. Note - See also the Research Involving Human Embryos Act 2002 of the Commonwealth which regulates research in relation to embryos. [Emphasis added.]
Section 17 of the ART Act addresses the giving, modifying and revoking of consent by the gamete provider. The relevant subsections are subss (1) and (2), which deal with giving consent, and confirm that the consent must be in the form of a written notice. They are extracted below: 17 Giving, modifying and revoking consent (1) A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice, in the approved form (if any), setting out the gamete provider's wishes in relation to the gamete (the gamete provider's consent). (2) A gamete provider's consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider.
The ART Act does not address situations in which the deceased person did not provide consent in the form required by s 17(1).
The interpretation of s 17 (and the balance of Pt 2 Div 3 of the ART Act) is informed by s 16, which provides: 16 Interpretation In this Division: (a) consent of a gamete provider means the gamete provider's consent given under section 17 in relation to a gamete as modified or revoked in accordance with that section, and (b) a requirement that any matter be consistent with a gamete provider's consent is, if gametes from more than one gamete provider are involved, a requirement that the matter be consistent with each gamete provider's consent.

[10]

EXISTING CASE LAW

The earlier aspects of these proceedings raised issues similar to those addressed in several previous decisions of this Court including: Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 ("Chapman") (per Fagan J); In the matter of an Application by Vernon [2020] NSWSC 608 ("Vernon") (per Rothman J); Noone v Genea [2020] NSWSC 118 ("Noone No 1") (per Beech-Jones J); and Noone v Genea Limited [2020] NSWSC 1860 ("Noone No 2") (per Beech-Jones J). As the proceedings have unfolded, however, the immediate relevant authority was Noone No 2.
In making the initial orders permitting extraction in Noone No 1, Beech-Jones J distinguished Chapman on the basis that the plaintiff, as senior available next of kin, provided the relevant consent under s 24 of the HT Act: Noone No 1 at [4]-[12]. The orders facilitated removal of gametes from the deceased.
In making subsequent orders on a notice of motion seeking declarations in relation to the use of the gametes in Noone No 2, Beech-Jones J explained that, although in making orders in Noone No 1 he was able to make a finding referable to s 24(4) of the HT Act, that "is not the same as the written consent required for the posthumous use of gametes by the ART Act": Noone No 2 at [22]. His Honour held it was clear that there was no written consent satisfying s 17 of the ART Act from the deceased consenting to the use of his gametes after his death for the purposes of s 23(a) of the ART Act: Noone No 2 at [36]. Having considered the orders made in Noone No 1, in light of both Chapman and Vernon (discussed below), his Honour found (at [47]): [47] … both the terms of the ART Act and the discussion in Chapman raise a real issue about whether the balance of the orders made on 19 February 2020 authorising the storage of the tissue sample should have been made. However, they were made, they are valid unless and until set aside and there is no application to set aside or vary them. In those circumstances, any inquiry into whether the orders should have been made is academic. There are already enough dicta floating around in this area of discourse without adding more.
In Noone No 2, both the plaintiff and the Attorney General "accepted that declaratory relief supporting [the plaintiff's] present entitlement to the tissue sample and her ability to transport it to the ACT was supported by so much of the reasoning in Chapman that concerned the fate of the sample after it was removed from the plaintiff's husband's body and by Edwards": at [51], citing Re Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478 ("Edwards").
In those circumstances, whilst Beech-Jones J explained that there was "considerable force" in the Attorney General's submission that the construction of "gamete provider" adopted by Rothman J in Vernon should not be adopted, it was not necessary to resolve that issue. In particular, his Honour found it unnecessary to resolve the disagreement between Vernon and Chapman as to when the plaintiff obtained property in the tissue sample, because the plaintiff had certainly acquired it by the time of the hearing. Thus, it was concluded that the balance of the "reasoning in Chapman and Edwards… confirms that neither Ms Noone nor Genea [would] be in breach of the ART Act if they arrange the safe transport of the tissue sample to the ACT": Noone No 2 at [51]. His Honour also noted that "[t]he fate of the tissue sample in the ACT is a matter for the laws of that polity".
The form of declarations ultimately made in Noone No 2 was as follows (at [4]): THE COURT DECLARES that: 1. Subject to declarations 2 and 3, the plaintiff is entitled to possession of the reproductive tissue sample collected from her late husband, Paul Lum, on or about 20 February 2020 (the "tissue sample") and currently stored by the defendant, Genea Limited ("Genea"). 2. Upon request by the plaintiff, Genea is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory; and 3. Upon receipt of the sample from Genea, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory.

[11]

CONSIDERATION

It would appear that the deceased in this matter did not provide written consent for the removal of his gametes after his death pursuant to s 17 of the ART Act to enable storage of gametes extracted after his death. However, the Court has found that the plaintiff validly authorised the extraction of gametes from the body of the deceased pursuant to s 24(3) of the HT Act: Adams No 1 at [48]. The Court further ordered that the sperm be stored pending further order at Genea in Sydney. No application was made to set aside those orders. They are valid unless and until set aside.
There is some conflict in the case law as to the legal basis for the extraction of gametes from a deceased male body in New South Wales. The findings by Beech-Jones J about the construction of the HT Act in Noone No 2 (at [45]-[46]) and by the Court as presently constituted in Adams No 1 (at [35], [44]-[46]) are potentially inconsistent with Fagan J's reasoning in Chapman that there is no legal basis for the extraction of gametes from a deceased male body in New South Wales (see Chapman at [58]). However, in Noone No 2, Beech-Jones J regarded Fagan J's comments as obiter (at [45]). His Honour observed: [45] … to the extent that in Chapman Fagan J addressed the legal basis for making orders for the removal of semen from the relevant person in that case, then his Honour's observations were obiter. As his Honour acknowledged, there was no application made to revoke those orders and the only matter for determination that arose in Chapman concerned the legal rights and obligations of the parties in respect of a tissue sample that had been extracted under a lawful order. It follows that his Honour's consideration of ss 23 and 24 of the Human Tissue Act was also obiter. The proper construction of those provisions was irrelevant to the matter his Honour had to determine.
The foundation for the orders made by Beech-Jones J in Noone No 2 was, in my view, the "exception" to the consent provisions of Pt 2 Div 3 of the ART Act that was applied in Chapman, itself following Edwards. I have followed his Honour's judgment, in that respect, in this matter; thus, establishing a proper basis for consent orders before the Court.
I note that, in Chapman, a transfer of possession of the gametes to a person who is not an ART provider may be characterised as a "release, relinquishment or surrender", rather than a "supply" under s 21 of the ART Act, and transport interstate may not necessarily constitute "export" so as to contravene s 22 of the ART Act (see Chapman at [78]-[85]).
As Ms J Davidson of counsel for the Attorney General submitted, the grant of declaratory relief is discretionary. In Cresswell v Attorney General (Qld) [2018] QSC 142, Brown J set out several discretionary considerations that may be presently relevant to the Court's discretion: 1. whether the sperm can be legally used in assisted reproductive technology treatment; 2. any consent, whether express or inferred, given by the deceased; 3. the likelihood that the sperm of the deceased, if extracted, would be used for the impregnation of his partner; 4. the best interests of any child that may be conceived as a result of the use of the sperm; 5. whether there are any generally held community standards in respect of the situation proposed and whether the proposed orders do or do not accord with such standards; and 6. whether the applicant's desire is a result of careful or rational deliberation as opposed to an emotional response to grief.
None of those factors, when applied in the current matter, pointed against the exercise of a discretion to grant the consent orders in the present case.
Finally, I accept the Attorney General's submission that, in future, matters of this type should require the express written consent for the removal of gametes by either the deceased or the senior available next of kin to be obtained. The desirability of that formal written instrument providing express authorisation was recognised in Adams No 1 at [39], albeit in a different context.
The Court confirms its orders of 15 March 2021.