In the matter of an application by Montgomery

Catchwords: CIVIL PROCEDURE – urgent application by spouse for sperm retrieval from deceased body of partner

Legislation Cited: Coroners Act 2009 (NSW)
Human Tissue Act 1983 (NSW)

Cases Cited: Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 123
In the Matter of an Application by A (Supreme Court of NSW, 27 October 2024, unreported)

Category: Principal judgment

Parties: Michelle Montgomery (Plaintiff)

Representation: Counsel:
J Smith (Plaintiff)
Solicitors:

File Number(s): 2025/2251843

Publication restriction: Nil

JUDGMENT

1. On the evening of 2 July 2025, the plaintiff, Michelle Montgomery, made an application ex parte to me sitting as the Duty Judge. Her summons sought orders under the Human Tissue Act 1983 (NSW) (“the HT Act”) which had the effect of allowing a doctor engaged by her to remove and store semen from her deceased de facto husband Cerith Brian Smith.

2. The matter proceeded ex parte in circumstances where I was satisfied that the coroner was aware of the application, had consented to it and did not wish to be heard. No other contradictor was necessary.

3. At the conclusion of the hearing late in the evening, I made declarations and orders effectively granting the relief sought by the plaintiff, albeit in a slightly different form to that sought in the summons. Due to the urgency of the application with a doctor on standby to undertake the procedure, I said I would provide reasons later. These are those reasons.

4. The evidence before the Court was that the deceased had died on 30 June 2025 in a motor vehicle accident. Applications such as this under the HT Act are time sensitive as there is a limited time after the death of a person that reproductive tissue such as semen can be removed and stored while remaining viable to be used at a later time. Whilst that time period is not certain, in this case the deceased had died almost 72 hours before the application was brought and the evidence before the Court indicated that this was towards the end point of the removal of the semen being viable if it was to be used in any In vitro fertilisation (“IVF”) at a later time. I should note that there is no guarantee that any IVF procedure, whether using semen removed from a deceased person or a person who is alive, will be successful.

5. Applications of this kind are governed by the HT Act. Part 4 of that Act deals with the removal of human tissue after death. That part contains provisions for the authorisation of removal of human tissue from a deceased person. The consent of the coroner is required when it is established that the coroner has jurisdiction to hold an inquest under the Coroners Act 2009 (NSW): s 25 HT Act. Whilst there was no direct evidence of this before me, I was satisfied that the circumstances of the death of the deceased arguably amount to a reportable death within the meaning of s 6 of the Coroners Act.

6. The Court had before it a signed instrument under s 25(5) of the HT Act from Deputy State Coroner O’Neil consenting to the removal of tissue, being sperm and/or testis, from the body of the deceased. The Deputy State Coroner noted in that consent that regard had been had to their role under s 81(1) of the Coroners Act and the wishes of the plaintiff as de facto spouse and senior next of kin of the deceased. Section 81 of the Coroners Act deals with the requirement for a coroner holding an inquest into the death of a person to record the findings as to the person’s identity, date and place of their death and if an inquest has been concluded, the manner and cause of death.

7. It appears that the Deputy State Coroner considered they had jurisdiction to hold an inquest into the death of the deceased. Otherwise, their consent would not have been required and the authority of the senior available next of kin would suffice: s 25(1), s 24(3) HT Act.

8. As the deceased’s body was at the Lidcombe morgue at the time of the application, s 24 of the HT Act applied. That section provides:

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

(1) If the body of a deceased person (other than a deceased child) is at a place other than a hospital, the removal of tissue from the body of the deceased person 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, is authorised if—

(a) the deceased person had, during the person’s lifetime, given his or her consent in writing to the removal of tissue from the person’s body for that purpose, and

(b) the consent had not been revoked.

(2) The authority conferred by subsection (1) is subject to the terms and any conditions of the consent referred to in that subsection.

(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.

(5) This section does not apply to a deceased child who, immediately before his or her death, was in the care of the State.

9. “Tissue” is defined in s 4 of the HT Act as:

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

10. A reference to tissue includes a reference to “semen”: s 4(2A)(a).

11. The plaintiff had deposed in an affidavit that the deceased was her de facto spouse. They had been together since June 2023. They lived together and had purchased a home together. They had a son in 2024. The plaintiff said she and the deceased had discussed having another child and they were going to begin to try to have the plaintiff fall pregnant from the New Year in 2026.

12. The plaintiff said that she had discussed the removal of sperm from the deceased with his parents. She said they supported her in the application.

13. I was satisfied that the plaintiff was the “senior available next of kin” as defined in s 4 of the HT Act, noting that “spouse” includes a de facto partner. The Court had before it a written authorisation from the plaintiff (in her capacity as senior available next of kin) authorising the extraction of reproductive tissue from the deceased.

14. When the matter was first before the Court, there was no evidence as to whether, during his lifetime, the plaintiff had discussed with the deceased the prospect of removing tissue from his body after death or whether he had voiced any objection to such a course. I adjourned the matter so counsel for the plaintiff could obtain some further instructions as to that issue and also as to how the plaintiff intended to use the semen if extracted.

15. Counsel for the plaintiff conferred with her and a supplementary affidavit of the plaintiff was read. In that affidavit the plaintiff said she had not had any discussion with the deceased about a procedure of removing tissue after death – that is understandable as the deceased was a healthy, young man and died unexpectedly. The plaintiff indicated, however, that the deceased had never voiced any opposition to removal of tissue from a person after death. She said the deceased’s parents had never heard him voice objection to the removal of human tissue after death.

16. The plaintiff also said that if the extraction of the tissue was allowed, she intended to store the semen so that she could undergo an IVF process sometime in the future.

17. I was satisfied that the plaintiff and the deceased wanted to have another child together. As mentioned above, they had planned to start trying to conceive in the new year of 2026. I was satisfied that the deceased had never indicated any opposition to removal of tissue from his body after death or as a general principle from the body of a deceased person. I was satisfied that the provisions of s 24(4) did not apply.

18. There was evidence before me that a Dr Derek Lok was willing to undertake the procedure to remove the tissue from the deceased. Dr Lok would then immediately take that tissue to be stored at a suitable facility. There was evidence as to an agreement, titled “Connect IVF Posthumous Sperm Collection Agreement” that the plaintiff had entered into with Connect IVF. I was satisfied that would be a suitable facility for the tissue to be stored.

19. During the hearing reference was made by me to the decision of Rigg J in In the Matter of an Application by A (Supreme Court of NSW, 27 October 2024, unreported) (“A”). In those reasons, her Honour undertook a helpful analysis of the relevant provisions of the HT Act and other authorities dealing with such applications. Like her Honour (at [40]), and Fagan J in Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 123 I was satisfied that the words “medical purposes or scientific purposes”, whilst not defined in the HT Act, are wide enough to include use in reproductive procedures, including IVF.

20. I considered that the plaintiff was entitled to relief of the type she sought. She had provided the requisite authority as senior available next of kin. In so far as it was required, the coroner had consented to the removal of the reproductive tissue from the body of the deceased. The procedure would be with the support of the deceased’s parents. The semen would be stored until the plaintiff decided to undergo an IVF procedure.

21. The nature of the orders sought to have the tissue removed from the deceased, then taken to a suitable storage facility and then stored until any order granting the use of that tissue is made (should such an order be necessary) meant I did not need to determine the issue of the plaintiff’s right (or otherwise) to possess the tissue once extracted as discussed by Rigg J in A at [41]-[44].

22. I respectfully agree with Rigg J’s observations in [46] of her Honour’s reasons about whether applications of this kind need to be made if the HT Act otherwise authorises the removal of tissue post mortem. If the consent of the coroner is not required under s 25 of the HT Act and the senior available next of kin provides the relevant authority for the removal of the tissue post mortem under s 24 of the HT Act, or where the coroner’s consent is required for the removal of tissue post mortem and the coroner provides that consent, and the senior available next of kin provides the relevant authority for the removal of the tissue, the involvement of the Court may not be required. Nevertheless, due to the uncertainty of their position and the fact that removal of tissue, including reproductive tissue, from a deceased person that is not authorised by the HT Act is an offence (s 36(1) HT Act), I also accept that some medical practitioners may not undertake the procedure absent an order from the Court.

23. It was for these reasons that I made the following declarations and orders:

THE COURT MAKES ORDERS:

1. On the undertaking of the Applicant to pay the appropriate filing fee, leave be granted to the Applicant to file in Court:

(a) This summons; (b) The affidavit of Michelle Montgomery (c) A written instrument authorising the extraction of reproductive tissue under the hand of Michelle Montgomery; and (d) Coroner’s decision on removal of tissue signed by Deputy State Coroner O’Neil dated 2 July 2025.

2. Direct that this summons be returnable instanter.

THE COURT DECLARES:

3. Ms Michelle Montgomery is, for the purposes of the Human Tissue Act 1983 (NSW), the Senior Available Next of Kin of Mr Cerith Brian Smith upon his death.
4. Ms Michelle Montgomery has, by written instrument, authorised the extraction, upon the death of Mr Cerith Brian Smith, of all and any tissue as is necessary for the purpose of Assisted Reproductive Treatment.

THE COURT MAKES ORDERS:

5. That the State Coroner of New South Wales make the body of Mr Cerith Brian Smith available to the Applicant’s suitably qualified medical officer for the purpose of the extraction of the reproductive tissue
6. The NSW State Coroner or any authorised officer of the State Coroner is to do all things necessary to give effect to the preceding order.
7. That any such reproductive tissue extracted as a result of Order 5 is to be released to the Applicant’s authorised retained medical tissue transportation company so as to be transported immediately to an authorised facility.
8. Authorising the storage of the removed tissue at a suitable facility until any order granting the use of that tissue is made, should such an order be necessary.

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