MAW v Western Sydney Area Health Service

Supreme Court of NSW|2000-05-03|Before: O'Keefe J, Gillard J

SOLICITORS : John Byrnes & Associates 160 Victoria Road DRUMMOYNE N S W 2047 Telephone: (02) 9181 2261

Blake Dawson Waldron 255 George Street SYDNEY N S W 2000 Telephone: (02) 9258 6124 File Number(s): SC 10957/2000

ORDER The Court Orders that:

Neither the name of the plaintiff nor that of her husband (in the Judgment in the above matter referred to as the patient) is to be published.

INTRODUCTION

Shortly after mid-day on Easter Sunday, 23 April, 2000, the solicitor for the plaintiff contacted the duty security officer at the Supreme Court and advised that he wished to contact the duty judge on behalf of the wife of a patient at Westmead Hospital in order to obtain an interim order for the taking of sperm from such patient The patient was reported to be in a coma and in imminent danger of dying. As duty judge I asked the security officer to obtain from the solicitor answers to the following questions:
Name of patient.
Occupation.
Name of wife.
Occupation of wife.
Age of patient.
Age of wife.
Which hospital was involved.
Duration of hospitalisation of the patient.
Illness of the patient.
Duration of such illness.
Have the doctors been asked to act.
If so, with what response.
Any expression of wish by the patient.
If so, in what form and when.
Name of treating doctor.
Name of hospital registrar.
Cause of coma.
How long in coma.
Life expectancy.
What evidence available as to life expectancy.
Are there any possible succession/estate implications. A little later, the following questions were added.
Date of marriage.
Any children.
If so, ages and sexes.
Contact phone number of doctor at hospital.
Initial answers were supplied by the solicitor for the plaintiff and these were later supplemented. The answers given are set out below, with the supplementary answers appearing in italics.
G A W.
Not known. Scaffolder .
M A W.
Unknown. Project Officer.
Date of birth 9 February, 1975.
Date of birth 8 November, 1972.
Westmead Hospital.
In hospital since 20 April, 2000.
Brain damage.
Since 20 April, 2000.
Yes.
Unable to do so without consent of patient; in coma not expected to recover.
No.
Not known. No plans.
Doctor Ashoke Banerjee.
Not known. Mr. Russell Mills.
Motor vehicle accident - patient a pedestrian struck by heavy vehicle with bull bar on front.
Since accident.
Approximately 48 hours.
Near brain dead; life support necessary.
Not known. Unable to say at this stage; no known will.
29 July, 1993.
No children.
Not applicable.
Number supplied.
The duty officer gave the emergency number to the plaintiff's solicitor, who then contacted me and sought an interim order for the taking of sperm from the patient. I informed the solicitor for the plaintiff that the order sought could not be regarded as interim and that if he wished I would convene an emergency hearing to take evidence and attempt to make a determination in the matter before the patient died. The solicitor for the plaintiff indicated that he had instructions to take that course whereupon I gave leave to serve short notice of a summons returnable for 24 April, 2000. Consequential orders were made in relation to service.
Information was then conveyed to the Chief Executive Officer of the defendant concerning the proposed hearing and the need for the defendant to be represented at such hearing.
On 24 April, 2000 a hearing of the Court was convened and pursuant to leave counsel for the plaintiff filed in Court a summons and two affidavits in support. The summons sought the following substantive relief:
An order that Professor Illingworth, or some duly qualified person authorised by him to carry out the procedure on behalf of the defendant, extract sperm from the testicles of the person G A W to be frozen and otherwise kept in viable condition pending further orders.
An order that the Western Sydney Area Health Service do all such things that shall be necessary to give effect to Order No.1.
The hearing of the matter proceeded . Evidence was taken including oral evidence from the plaintiff.
The evidence from Professor Peter Illingworth, Director of Reproductive Medicine at Westmead Hospital, is that if the sperm of the patient is to be collected, it must be done whilst he is alive, since once the patient is dead, they are no longer viable. Furthermore, in normal clinical use, the procedure of collection and storage of sperm for later use between husband and wife, is only carried out with the express consent of both partners to the marriage. Absent such a consent, the hospital, and the medical practitioners who are members of the hospital staff, will not act.
As the hearing was not completed by late on the afternoon of Easter Monday, the further hearing was adjourned until the following day, Anzac Day. The plaintiff agreed that during the period of the adjournment she would undergo, and the defendant agreed to provide, a psychological assessment.
When the hearing resumed on 25 April, 2000, further oral evidence was taken. This was given by the plaintiff's father and dealt with the financial position of the plaintiff and her husband, the patient. Further information was then obtained from the hospital as to the condition of the patient so that an assessment could be made as to whether it was necessary to give a decision immediately or whether it could wait until 26 April, 2000. The information conveyed from the hospital was that the patient's condition had deteriorated, that he was essentially brain dead, that the functioning of his other organs was being maintained by a life support system, but that it was expected that their functioning would be likely to come to an end soon, perhaps as soon as the evening of 25 April, 2000. As a consequence, it was necessary to make and convey a determination in the matter on 25 April, 2000.
In view of this information, I adjourned for a period to consider the evidence and argument and shortly before 5 p.m. on 25 April, 2000 declined to make the orders sought, indicating that I would formally dismiss the summons when detailed reasons for my conclusion were able to be prepared. At that time a request was made that the defendant consider not seeking an order for costs in the matter and I was informed that the defendant was agreeable that no order as to costs should be made. The patient died on 27 April 2000

FACTS

The plaintiff and the patient were married on 29 July, 1993. The patient had been a member of the Royal Australian Navy and the plaintiff had met him when she too was in the Navy. However, the patient left the Navy and became a scaffolder. The plaintiff also left the Navy and thereafter was employed by the Department of Defence as a member of a team concerned with special project work. According to her father, the plaintiff had qualifications as an accountant, but the precise nature of those qualifications is not the subject of any evidence.
The plaintiff and the patient decided not to have children until they got on their feet financially. They purchased a house in the Newcastle area, did it up and then leased it. There was a mortgage on that property, but the rental payments were sufficient to meet the obligations under the mortgage. They then purchased another house in Baulkham Hills which is currently in course of being renovated. That house is also the subject of a mortgage.
From time to time the patient and the plaintiff had discussed the possibility of having children, but it was decided that they would not do so, at least for some time. In late 1999 the plaintiff and the patient attended their local general practitioner for a periodic health checkup. In the course of that attendance the general practitioner pointed out that the plaintiff was getting older and that if she was going to have children she should do so at that time. This led to a discussion between the plaintiff and the patient in which she indicated that she did not wish to have children at that time, but would put it off for a period that was not really defined.
At the end of 1999 the patient discussed with the plaintiff the prospect of his having a vasectomy. Initially when this was discussed it was apparently in a jocose way. However, the discussion then became serious. They investigated vasectomies on the internet, obtained a brochure on the subject from the Blacktown Civic Centre and at some stage during this discussion it was decided by the couple that for the patient to have a vasectomy "probably wouldn't be such a bad idea." It appears that during his service in the Navy, the patient had been exposed to radar radiation and had been informed by the Navy authorities that this could affect his sperm count. There was, according to the plaintiff, some discussion about the patient possibly making a semen donation before going with his friends at work to have a vasectomy which, it was laughingly suggested, might thereby be obtained at a discounted rate. However, nothing was done in furtherance of this.
In their discussions concerning the possibility of having a child, the patient had indicated that if they were to have a child he wanted a boy "to carry on the W name". However the upshot of the discussions concerning the possibility of commencing a family was that consideration of the matter was still further postponed. As at April, 2000 they had "no plans" to have a child, as the answers to the questions posed on 23 April, 2000 reveal. For financial reasons, nothing was done about the patient having a vasectomy.
The patient was the holder of a heavy vehicle driver's licence and when renewing his licence signed the election which made him a "Donor A". This involves the holder of the licence agreeing to the post mortem extraction of his organs for use in other people. It does not extend to semen nor can it be construed as any consent in respect of semen or its use whether posthumously or not.
In the present case, the fact is that there has been no actual consent given by the patient to the taking, storage or use of his semen, and I am satisfied that such prospect was never seriously discussed between Mr. and Mrs. W or seriously entertained by Mr. W.
From the foregoing, I do not think it is appropriate to infer, and I do not infer, any consent on the part of the patient to the taking, preserving and use of his semen to impregnate his wife, more particularly to do so after his death. In this regard, it is relevant to note that in the forms used at the Westmead Hospital (which I understand to be those common to the public health system), a consent form is required to be completed by both the donor and his wife, even when the donor is the husband and the semen is taken for the purposes of impregnating his wife. This is not a formal legal requirement under the Human Tissue Act, 1983 since S.21C(4) of that Act provides that such section has no application as between consenting spouses. It is clear however that the analogy of the section is, as an ethical consideration, applied by the hospital to ensure that there is a clear and informed consent from both the husband and the wife. Furthermore, the forms used require the married couple to indicate whether the consent given continues to operate notwithstanding the death of one of the spouses. The Court was informed, and it was accepted by the parties, that in the period since the enactment of the Human Tissue Act, 1983, Westmead Hospital had not had any case in which a wife had used stored semen from her husband for her impregnation after his death.
The extraction of semen from the patient would involve a needle aspiration or a biopsy of one or both testes and/or the epididymides. Although these are straight forward procedures, they are invasive and, as the consent forms tendered before the Court indicate, there can be complications, principal amongst which are bleeding, bruising and infection within the testes. Furthermore, despite resort to such a procedure and subsequent artificial insemination, fertilisation may not occur and the occurrence of a pregnancy cannot be assured.
The plaintiff's reason for seeking an order for the extraction of semen from her husband is set out in her affidavit as follows: "The main reason why I want to do this is because it is something that I want and something I know Geoffrey would want. I feel that I can't live without my husband and this is giving me the opportunity to have at least part of him still with me."
The fact is that the patient did not consent to artificially inseminating his wife and indeed there is no reason to believe that artificial insemination would have been necessary. There is no suggestion in the evidence that conception by conventional means in the course of nature was not possible. Not to have children was a conscious decision. Even if the patient himself had wanted children, there is nothing to suggest that he ever turned his mind to artificial insemination, let alone to the prospect of a child posthumously conceived by such means. The fact that the plaintiff states that the patient "would want it" itself highlights that he never expressed any wish or desire in this regard. That statement by the plaintiff is, in my opinion, a projection by her of her wish at this time, rather than an expression of any wish by her husband.
Furthermore, when the plaintiff was tested in relation to her stated wish to have a child using the semen of her husband, she frankly conceded that she was "emotional at the moment", that she would not make a decision for some months, perhaps twelve months, when she would "be able to make an informed decision" that is at a time "when I am thinking correctly". At that time, it is possible, as she conceded, "I may not use the semen." In my opinion, her oral evidence highlighted that she felt it was fault on her part that a child had not been forthcoming from the marriage while her husband was well and seemingly able to produce such a child had he and she wanted to do so. Moreover, she felt the "need to have part of him with me and a child is the only way". Whilst this is a consideration for her it does not touch upon the health or physical or psychological well being of the patient. The taking of semen from the patient is not necessary for the patient in any relevant health sense. It is not therapeutic. The procedures involved in the extraction of semen are at best neutral in relation to the health and well being of the patient. At worst they pose the risk of bleeding, bruising and infection.
The medical assessment of the plaintiff reinforces the undesirability of the plaintiff making a decision of such a significant kind when she was under the high emotional stress produced by the circumstances of her husband's injury and his imminent or actual death.
I am satisfied that even if the semen were to be extracted from the patient, there is no certainty that it would be used by the plaintiff, indeed, I cannot help but think that it is more likely that when she is over the emotional trauma, back at work and in normal living mode, financial and other practical considerations will cause her to reconsider her present stance.
In summary, I am satisfied that the principal reason for the present application is for the plaintiff to preserve for her benefit the possibility of having after the death of her husband the child which was not produced during the currency of the marriage as a result of agreement between the two spouses. She wishes to preserve that possibility because at the present time it is what she wants and can see it as a way of keeping her husband with her despite his death.
The issues posed in the case are:
Whether there is jurisdiction in the Court to authorise the relevant surgical procedure in the absence of a consent by the patient.
If there is jurisdiction, should that jurisdiction be exercised in the instant case.

The Common Law
The Supreme Court, as formerly established as the superior court of record in New South Wales, is continued by the Supreme Court Act, 1970 (S.22) and has conferred on it all jurisdiction which may be necessary for the administration of justice in New South Wales (S.23). The jurisdiction of the Supreme Court was established by virtue of 4 George IV c.96 and the Third Charter of Justice for New South Wales, which was sealed on 13 October, 1823. Subject to the Federal Constitution, the Supreme Court is a court of unlimited jurisdiction and as such has an inherent jurisdiction which is sufficiently wide to meet the requirements of the administration of justice. Such a jurisdiction includes a parens patriae jurisdiction (Secretary Department of Health and Community Services v. J.W.G. and S.M.B. ((1991-2) 175 CLR 218 - Marion's Case; See also Halsbury's Laws of England 4th Ed. Para. 901).
Under its parens patriae jurisdiction, the Court is able to give consents in respect of certain matters on behalf of persons who are under age or otherwise incapable of giving the necessary consent themselves. The first matter for decision in this case is whether that power of the Court extends to consenting on behalf of the patient to the extraction of his semen for possible use to impregnate his wife after his death.
S.61 of the Crimes Act, 1900 makes it an offence for one person to assault another even though such assault does not occasion actual bodily harm and prescribes a penalty of imprisonment for two years. A person who causes grevious bodily harm to another is also liable to imprisonment for two years if such harm is caused by any unlawful act. (S.54). These provisions are a statutory reflection of the common law that prima facie it is unlawful to interfere with the right to bodily integrity of another person, or as the High Court in Marion's Case termed it "the right in an individual to chose what occurs with respect to his or his own person" or the "principle of bodily inviolability" (supra at 233). Subject to the ordinary exigencies and incidents of communal living, degrees of interference are not relevant. The statement by Blackstone in his Commentaries (17th Ed.(1830) Vol. 3 p.120), that: "The law cannot draw the line between degrees of violence and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." remains as a basic principle of the law of Australia today ( Marion's Case supra at 233, 310). Furthermore, the expression of that principle in relation to adults as formulated by Cardozo J.: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault." ( Schloendorff v. Society of New York Hospital (1914) 105 NE 92 at 93 has been accepted by the High Court as an expression of the common law principle of "inviolability" of a person's body ( Marion's Case at 234; 310).
It is well established that a consent to a surgical intervention on or invasion of the body of an individual is inferred by the common law if it is carried out in order to preserve the life or health of the individual. In New South Wales, this right is enshrined in statute in respect of children (Children (Care and Protection) Act, 1987 S. 20B) but the consent required for an adult is either to be inferred from the circumstances to which I have already referred, or given by the Court in the exercise of its parens patriae jurisdiction or, in some instances, by an appropriate statutory authority (see infra Guardianship Act, 1987) . However, the basic principle remains, that the ability of an adult to exercise a free choice in deciding whether to accept or refuse medical treatment is a crucial factor, not merely a desirable matter, in relation to all medical treatment or intervention (In Re F. (1990) 2 AC 1 at 19). If consent is absent, whether temporarily in an emergency situation or permanently in a case of mental disability or brain damage, "there must be greater caution in deciding whether to treat and ,if so, how to treat" (In Re F. supra at 19).
The parens patriae jurisdiction of the Court is essentially protective in nature (Marion's Case supra at 280) and although broad, is to be exercised cautiously (In Re O'Hara (1970) AC 668 at 695; Marion's Case supra at 280). Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others (Re Eve (1987) 31 DLR (4th) 1 at 34). Furthermore, it has limits.
The limits of the parens patriae jurisdiction have been raised most starkly in relation to the sterilisation of adolescents or adults who are mentally retarded. In Canada the Supreme Court of Canada (Dickson CJC, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ) held in Re Eve (supra) that non-therapeutic sterilisation could never safely be said to be in the best interests of a person and so could never be authorised by a Court under the parens patriae jurisdiction. This case clearly recognises that there is, and also establishes, a limit on the parens patriae jurisdiction under the common law of Canada. Furthermore, it stresses the essentially protective nature of such jurisdiction.
In the United States the situation in relation to the scope of the parens patriae jurisdiction of the Courts has waxed and waned. In the early part of the 20th Century the science of eugenics, founded on Mendelian theories of inheritance, was in vogue. Eugenic theories in relation to humans were dependent on the belief that physical and mental deficiencies and even moral aberrations are genetically based. As a consequence, eugenic sterilisation was advocated by many social reformers. This led to over thirty of the United States enacting statutes which permitted the compulsory sterilisation of the mentally retarded (Re Eve, supra). The Supreme Court of the United States upheld such statutes in Buck v Bell ((1927) 274 US 200). Holmes J said: "It is better for all the world, if instead of waiting to execute degenerative offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind" (supra at 207).
This type of thinking influenced the course of decisions in the United States for a long time. However it would now be as abhorrent to most thinking members of the Australian community as was its expression in the elimination of certain races and religious and other groups in Europe during the 1930's and early 1940's. The mentally disabled have rights too. This judicial approach gave validity not only to the statutes authorising compulsory sterilisation, but also influenced the ambit of the parens patriae jurisdiction in those states in which there was no such statutory authorisation.
By the late 1930's the rebuttal of the eugenic theories which underlay the statutory and judicial approaches referred to above had proceeded to the extent that courts in the United States were reluctant to order sterilisation of mentally handicapped persons, unless there was specific statutory authority which permitted it. This situation continued until the decision of the Supreme Court of the United States in Stump v Sparkman ((1978) 435 US 349). Since that decision a large majority of State Courts in the United States have decided that they have authority under the parens patriae jurisdiction to authorise sterilisation of the mentally retarded even in the absence of statutory provisions to that effect. The reasons for so deciding extend over a wide spectrum.
Thus as was pointed out in Marion's Case (supra at249), at the present time in the United States, there is a recognition that whilst power to consent to a non therapeutic sterilisation of a child or mentally disabled person is outside the scope of parental power, it falls within the scope of the Court's parens patriae jurisdiction.
In England the question of the requirement of consent and the situation of the Court in relation to the giving of such a consent was considered in the House of Lords in relation to a minor in Re B (A Minor) (Wardship : Sterilisation) 1988 AC 199 and in the Court of Appeal and the House of Lords in Re F (Mental Patient: Sterilisation) (1990) 2 AC 11 in relation to a mentally handicapped adult. In the House of Lords it was accepted in the latter case that those who undertake responsibility for the care of incompetent or unconscious patients may administer curative or prophylactic treatment which they believe to be in the patient's best interest (supra at 252). In both the Court of Appeal and the House of Lords it was made clear that any operative procedure that is carried out must be in the best interests of preserving the life or health of the person concerned (supra at 37, 79) that is "to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health" (supra at 55). In the Court of Appeal consent to the sterilisation of mentally infirm persons was regarded as "a special category" under the parens patriae jurisdiction (supra at 19). In the House of Lords it was held that the parens patriae jurisdiction had been taken away from the High Court of Justice . Necessity was invoked in respect of persons who were mentally disabled or unconscious and unable to give a consent, so too was the need to act in best interests of the health of the patient. In such cases the principle of necessity was said to extend to treatment, including surgery, that was undertaken in the best interests of the patient to preserve the life, health or well being of such patient (supra at 76, 79). It was decided that whilst the parens patriae jurisdiction would enable a Court to act in the case of infants and of adults who were mentally disabled (supra at 63), this jurisdiction of the High Court of Justice in England having been abrogated (supra at 57-58; 72-72). However, a procedure by way of declaration was available and appropriate and in the result the Court made declarations that were viewed as in the best interests of the person concerned.
In New Zealand it was decided in Re X ((1991) 2 NZLR 365) that the Court had parens patriae jurisdiction to consent to a hysterectomy being performed on a 15 year old intellectually handicapped girl with a mental age of about three months. This was done expressly on the basis that the operation was to be performed not for the purpose of sterilisation but for her benefit, in that its performance would prevent menstruation with which she would not be able to cope, would promote her hygiene and prevent pain which she would not understand and with which she would not be able to cope. The essence of the decision was that consent to the operation could be given by the Court because it was to promote the health and well being of the person on whom the invasive surgical procedure was to be undertaken.
In Australia, the High Court in Marion's Case also recognised that sterilisation was "a special case" which gave rise to a jurisdiction to authorise sterilisation even where this was non-therapeutic (supra at 250 per Mason CJ., Dawson, Toohey and Gaudron JJ.; compare Brennan J. at 277; Deane J. at 306.). Mason CJ., Dawson, Toohey and Guadron JJ. however, arrived at their conclusion for reasons that were at least in part different from those relied on in the United States and to an extent in England. Nevertheless, the overriding criterion to be applied was said by all judges to be the protection of the best interest of the health and welfare of the person the subject of the consent. (supra at 240, 249, 252, 270-273, 295, 300, 316).
A review of the authorities in various countries shows a divergence in the common law of some of those countries as well as a divergence in the reasoning by which in some countries the common law has arrived at the same conclusion in relation to the necessity for court authorisation for sterilisation of adolescents and intellectually disabled adults and the power of the court so to authorise. In my opinion, the existence of such divergence in outcomes and in reasoning as well as the fact that non therapeutic sterilisation is recognised as constituting a special category or case indicates that operative procedures that are not necessary to preserve the life or ensure improvement or prevent deterioration in the physical or mental health or well being of an incapable person are not able to be consented to by the Court under its parens patriae jurisdiction, except in the controversial special category or case of non therapeutic sterilisation.
For the foregoing reasons I am of the opinion that within its limits as presently defined the parens patriae jurisdiction of the Court does not extend to authorising a non-therapeutic surgical procedure of the kind contemplated by the present application. It is not a procedure that is necessary to preserve the life of the patient. It is not a procedure which will safeguard, secure or promote, or prevent the deterioration in, the physical or mental health of the patient. It is not a procedure which will promote the well being of the patient. In these circumstances it could only be authorised by the Court under its parens patriae jurisdiction if yet another special category or case, is recognised in respect of the surgical procedure in question in the present case.
The surgical procedure proposed does not constitute medical treatment. Furthermore, the recognition of yet another special case would, in my opinion, both operate to weaken the general principle of inviolability of the body of the individual and be inconsistent with the reasoning by which the High Court in Marion's Case arrived at the conclusion that non therapeutic sterilisation was a special case for which court authorisation was necessary if it be undertaken in relation to minors and persons who were not in a position to give an informed consent. The stress placed by the High Court on the need for caution because of the significant risk of making a wrong decision and the consequences of a wrong decision (Marion's Case at 250, 252) in my opinion further militates against the recognition of yet another category of special case that would permit a consent being given in the present case.
Whilst I find it difficult to formulate the best interests of the welfare of a child such as is postulated as a possibility in the present case, such best interests should, under our law, be had regard to. This difficulty in relation to any child conceived as a consequence of the extraction of the semen of the patient and the subsequent impregnation of the plaintiff with that semen, is yet another factor militating against the recognition of such a new special category. Such a child would never have the prospect of knowing its father. Such a child would come to recognise that he or she was not sought to be procreated during the life of the father. Such a child would not have rights of succession under the law of New South Wales nor rights under the Compensation to Relatives Act arising out of the circumstances giving rise to the death of his or her father. Furthermore, should the circumstances of the child's conception come to be known there would be people in the community who would tend to regard the child as different - not a happy situation, especially for a child.
In the circumstances of the present case I cannot conclude that such a child's best interests would be served by being brought into existence in the manner, at the time and in the circumstances contemplated as possible by the plaintiff. These considerations militate against the recognition of yet another special category to cover the present case.
The research able to be undertaken in the time available has revealed four cases. One in England, three in Victoria. The English case, Regina v Human Fertilisation and Embryology Authority Ex parte Blood ((1997) 2 WLR 806; 35 BMLR 1) was concerned with the storage and export from England to Belgium of semen that had been extracted without consent from an unconscious patient with the intent that the patient's wife should be impregnated in Belgium using such semen. The case turned on the construction of English legislation concerning the storage of semen and certain articles of the European Community Treaty to which the United Kingdom was a party. In that case the applicant for relief and her husband had decided actively to try and start a family, but before the applicant could conceive her husband contracted meningitis and fell into a coma. Without the husband's consent one sample of semen was taken whilst he was in such coma; a second shortly before he was certified as clinically dead. The Court expressly put to one side and did not consider the question of the circumstances in which the samples were taken. Lord Wolfe MR who delivered the judgement of the Court said: "The lawfulness of the taking of the semen from (the patient) as he lay unconscious … is governed by common law principles relating to the patient's consent … which have not been argued before us. It is therefore not necessary to comment about this." (supra at 815).
However, it was made clear that the question of the lawfulness of the storage and export of the semen was quite separate from the question of the lawfulness of the taking of the semen and the fact that such matter was not argued or commented upon should not be taken as accepting that proper consent was given to the procedure or that the procedure was lawful.
The case is therefore not a precedent for the present case and provides no assistance as to the principles to be applied.
Of the three cases in Victoria, consent was refused in two instances. However, there are no reasons that have been extracted or are available in respect of those refusals and it appears that in at least one of those cases the application was made by telephone and that there are no relevant papers to be had. One case (AB v Attorney General for the State of Victoria 21 July 1998, unreported, Gillard J) arose out of the death in a motor vehicle accident of a 29 year old male who was resident in Victoria for the purposes of his employment, but who normally resided with his wife in the Australian Capital Territory, where she was resident at the time of his death. After hearing of her husband's death in Victoria his widow flew to Melbourne and having viewed her husband's body at the morgue decided that she wished to have semen removed from the body of the deceased with a view to enabling her to be artificially inseminated so as to produce a child. When she requested consent from the Coroner to perform the relevant surgical procedure the question of the authority to remove body fluid was raised and the Court was approached . Gillard J made an ex parte order permitting the removal of the semen and a suppression order, until further order, because he thought "it was in the interests of the administration of justice taking into account the fact that the widow was grieving after the recent death, the uncertainty of the jurisdiction and its exercise …". The order was said to have been "made in haste" and "before the Court had an opportunity to consider fully the jurisdiction of the Court and the applicable legal principles". I have not been able to ascertain the ultimate outcome of those proceedings nor to locate any considered judgement by Gillard J. However, that case deals with a set of circumstances different from those in the present case. In AB v Attorney General of Victoria the person from whom the semen was extracted was already dead. That itself raises different ethical and legal problems not relevant to the present case. I have made reference to this case not because it provides a precedent, but rather because it highlights the absence of precedent in a case of the kind presently under consideration and the absence of a considered decision even where a deceased person is the subject of the order sought. The case does not extend the parens patriae jurisdiction of the Court.
For the reasons stated above, I am of opinion that the parens patriae jurisdiction does not extend to the Court giving a consent to the surgical procedure proposed in the Summons.
The conclusion at which I have arrived concerns the absence of jurisdiction under the common law. It is necessary, however, to consider two statutes to which reference has been made.

A. The Guardianship Act, 1987

The Guardianship Act, 1987 preserves the jurisdiction of the Supreme Court with respect to the guardianship of persons (s.8(1)). Thus the power of the Court to appoint a guardian is preserved. In exercising that power the welfare of the person the subject of the appointed guardian is a paramount consideration for the Court. Everyone exercising functions under the Guardianship Act, 1987 with respect to persons who have disabilities is required to observe the principles set out in S.4. These include the welfare and interests of such person being given "paramount consideration" (S.4(a)).
The Guardianship Act, 1987 specifically empowers the Tribunal under the Act to give consent for the carrying out of medical or dental treatment on a patient to whom Part 5 of the Act applies. That would include a person in the situation of the patient for whom a guardian had been appointed. It is an offence for a person to carry out medical or dental treatment on a patient to whom Part 5 applies unless consent has been given in accordance with such Part,or the carrying out of the treatment is authorised by Part 5 or the treatment is carried out in accordance with an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons (S.35). Consent to such treatment may only be given by the person responsible for the patient or the Tribunal, but under Part 5 any medical treatment that is carried out must be "for the purpose of promoting and maintaining (the) health and well being" of the person the subject of the treatment (S.32) and medical treatment (which includes any surgical procedure or operation) can only be consented to if the Tribunal is satisfied that the treatment is the most appropriate form for promoting and maintaining the patient's health and well being (S.45(1)).
The tenor of the Guardianship Act, 1987 mirrors the common law parens patriae jurisdiction of the Court and in relation to operative procedures and like medical intrusions must be for the purposes of promoting and maintaining the health and well being of the patient.
The provisions of the Guardianship Act, 1987 do not detract from the parens patriae jurisdiction of the Court nor do they relevantly extend it. The considerations that apply in respect of authorisations for surgery that may be given by the Tribunal appointed under the Guardianship Act, 1987 do not extent to the Tribunal authorising the taking of semen from a disabled (in this case unconscious) patient in respect of whom a guardian has been appointed since such a surgical procedure cannot be said to be for the purpose of promoting and maintaining the health and welfare of the patient.
When the provisions of the Guardianship Act, 1987 were discussed during the course of argument, counsel for the plaintiff made it clear that he did not wish to apply for the appointment of a guardian and recognised that the appointment of a guardian would not advance the plaintiff's case beyond the limits of the parens patriae jurisdiction of the Court.

B. The Human Tissue Act, 1983

The Human Tissue Act, 1983 regulates the donation of tissue by living persons, the removal of tissue from deceased persons, its transplantation and certain other matters. Tissue is defined to include a substance extracted from or from part of the human body (s.4) and as a result of an amendment to the Act a reference to tissue includes a reference to semen (S.4(2A)(a)). Transplantation is defined as including the artificial insemination of semen (S.4(3)(b)).
Part 3A of The Human Tissue Act, 1983 applies to semen obtained or received from a donor for the purpose of using it for the artificial insemination of a woman (S.21B). Stringent provisions are made in S.21C about consents and certification as to the medical suitability of the donor. However, by virtue of S.21C(4) the section does not apply where the semen has been obtained from a donor solely for the purpose of its use for the artificial insemination of the donor's spouse.
The form of S.21C(4), which requires that the semen to which it applies should have been obtained solely for the purpose of its use for the artificial insemination of the donor's spouse, raises a possible problem in the present case. Although any semen extracted from the patient would, if used, be for the purpose of artificially inseminating Mrs W, the evidence reveals that the removal would be for that possible purpose or for the possible purpose of it being stored and later destroyed in the event that Mrs W decides in the future that she does not want to have a child using the semen of her husband. In view of this I do not think that it can be said that the semen if extracted will have been obtained solely for the purpose of its use. It will be extracted for possible use or possible destruction. In my view S.21C(4) is directed to those cases in which there is a definite present intent to use the extracted semen for the purposes of artificial insemination and not otherwise, for example for destruction.
If this view be correct then the absence of a certificate of the kind required by s.21C(1) and (3) cannot be overcome by a Court authorisation for the removal of the semen. Indeed, the provision of s.21C of The Human Tissue Act would, if such construction be correct, prevent the removal of semen from the patient in the instant case.
However, even if such a construction not be correct, S.21C, in my opinion, stresses the need for thorough inquiry, as to the medical suitability of the donor for the purposes of artificial insemination. There are no doubt ethical considerations which guide clinics and hospitals which deal with artificial insemination. The evidence in the instant case reveals that a consent from both spouses is a pre-requisite and that they must both stipulate whether the consent is to enure after death.
An examination of the provisions of The Human Tissue Act, 1983 certainly does not expand or extend the parens patriae jurisdiction of the Court in relation to consents for surgical procedures of the kind sought in the present case.
For the foregoing reasons, I am of opinion that the statutory provisions to which reference has been made do not extend the power of the Court beyond the limits of the parens patriae jurisdiction to which I have referred above. As a consequence there is no jurisdiction to make the orders sought by the plaintiff.

Discretion

Although the decision to which I have come in relation to jurisdiction is sufficient to dispose of the present case, I think it desirable in the circumstances that I deal with a submission made on behalf of the plaintiff that there is a discretion to order or permit the taking of semen from the patient and that such discretion should be exercised in favour of the plaintiff.
In my opinion, if , contrary to the conclusions to which I have come, there is a discretion, it should not be exercised in favour of the plaintiff. Factors in the present case which would be material to the exercise of any such discretion would be:
Any consent, whether express or inferred, given by the patient.
The best interests of the physical and psychological health and well being of the patient.
The likelihood that the semen of the patient, if extracted, would be used for the impregnation of his wife.
The best interests of any child that may be conceived as a result of the use of the semen.
Whether there are any generally held community standards in respect of the situation proposed.
Whether what is proposed by the plaintiff would, or would not, accord with any such standards.

As to 1

As has already been decided, the patient has not actually given, nor should it be inferred that he would give, consent to the taking of his semen and its post mortem preservation for possible later use to impregnate his wife. In the course of discussing the facts of the present case, it was concluded that the question of a semen donation even for use during his lifetime was not a matter to which the patient had seriously turned his mind; a fortiori, for use after his death .
The principle of inviolability of the body of the patient should not be derogated from merely because it is a spouse who seeks such derogation. Just as a wife in the course of marriage may claim to exercise her own judgment in relation to, and control over, her body be it in relation to sexual relations or otherwise, so too may a husband. Such a claim by the husband where he is incapable of making his own decision should not be lightly put to one side and should not be put to one side for the benefit of another party, even a wife.
These considerations militate against the exercise of any discretion in favour of giving consent.

As to 2.

At the time of the application it was apparent that the patient was, and would remain, unaware of the fact that a surgical procedure to remove semen from him was being or had been undertaken. His condition was inconsistent with his ever knowing the possible purpose of use of any such semen. His well being in the psychological or general sense could not therefore be said to be promoted by the proposed surgical procedure. At best, his physical condition would not be changed one way or the other as a result of the undertaking of such a procedure; at worst it may be adversely affected as a consequence of one of the complications to which I have already referred. The possibility of such complications and the absence of any necessity to undertake the proposed procedure militate against consent being given for it to be undertaken.

As to 3.

To permit an invasive procedure to be undertaken so as to preserve a possibility of use of the semen for the purposes of impregnation, does not commend itself to me as a sound basis for exercising a discretion in favour of giving the necessary consent.
Furthermore, it is clear that the emotional state of the plaintiff is such that she should not make decisions which will fundamentally affect her future whilst she is under the stress which the present circumstances impose upon her. She herself recognises this and is supported by professional opinion to the same effect. Moreover, whilst recognising that it is difficult to predict the future or future actions of an individual, I cannot help but think that when the emotional crisis of the plaintiff subsides, when she returns to work and ordinary circumstances of living and when she considers the prospect of having to involve herself in bearing and caring for a child which, as she herself said "is incredibly time consuming and demanding", she is quite likely to change her mind about having a child. Even if this view be not correct, the prospect that it may be correct would itself be relevant to this head of consideration in relation to the exercise of any discretion and would operate against its exercise in a way which would permit the possibility of conception being brought about.
The plaintiff herself recognised that the views presently held by her and her wishes may change. The fact that she couches her present application in terms of leaving open an option or possibility, to my mind highlights the real prospect that with the passage of time and the occurrence of other events, her view will change as her perspective of the events in which she is presently involved changes.
I realise that in coming to these conclusions it may be thought that the Court is substituting its own view for the view of the plaintiff. However, in the exercise of the parens patriae jurisdiction the substitution of the Court's view for that of the parents of a child or the guardian of an incapable person is not uncommon. The Court in its exercise of such jurisdiction acts without the emotional, financial and other pressures which may be imposed on the parents or guardian of the person in respect of whom the jurisdiction is exercised.

As to 4.

It is virtually impossible to talk sensibly about the best interests of a child that has not been and may never be conceived, whether this be as a result of a decision made by the plaintiff not to undergo artificial insemination or because, even if undergone, such a procedure may prove to be ineffective.
There is no way of knowing whether the sperm of the patient are healthy or were affected by his occupation and exposure during the course of service in the Navy. However, even assuming that his sperm were not adversely affected and could and would be used successfully to impregnate the plaintiff, there is no way of knowing what the circumstances of the plaintiff's health will be in twelve or eighteen months or two years from the present, what her employment and financial situation will be, whether she will have remarried or be in a situation where remarriage is a prospect. Without knowing such and many other matters, it is probably impossible to make any sensible prediction as to the welfare and well being of the putative child. Some other general matters have been adverted to above.
Whilst it might be argued that the possibility of life is always better than no life, this is a matter on which the views of experts differ - as can be seen in the medical and psychological debates which take place in respect of the abortion of children conceived by those who are mentally retarded or suffer from Downs Syndrome or other inheritable or communicable disorder or disease. (T. Faunce, Peri-Gravid Genetic Screening: The Spectre of Eugenics and Medical Conscientious, Non-Compliance: Journal of Law and Medicine, 6:2: 146-167, November, 1998; S. D. Edwards, The Moral Status of Intellectually Disabled Individuals: The Journal of Medicine and Philosophy 22:1: 29-42, 1997; J Bopp et al, A Critique of Family Members as Proxy Decision Makers Without Legal Limits: Issues in Law and Family Medicine, 12:2:133-136, 1996). Such debates tend to suggest an absence of a settled community standard in our pluralistic, multi cultural society, even in respect of a life that has actually begun; a fortiori in respect of a life which remains in the realm of option or possibility.
In my opinion, this factor does not operate in favour of any discretion being exercised to grant a consent.

As to 5 and 6.

As I have said, Australia is a multi cultural and pluralist society. There are many areas in which there is division as to community standards and many areas in which it cannot be said that there is a community standard. Furthermore, in some instances the standards of the past are either no longer appropriate or are under challenge. An example which is prominent at the present time is the standard which gave rise to the stolen generation of Aboriginal children. (Bringing Them Home - Human Rights and Equal Opportunity Commission, 1996 (C'wealth - The Wilson Report). There is no doubt that well intentioned governments, bureaucrats and individuals saw the best interests of Aboriginal children being served by their being removed from their natural parents and placed with adoptive or foster parents. Such adoptive or foster parents were commonly seen at that time as being altruistic, generous hearted and anxious to advance the welfare of our indigenous people. Those views are now rejected by many and questioned quite generally in the community (see Kruger v The Commonwealth (1996-97) 190 CLR 1).
Adoption is another area in which standards have undergone fundamental change. For generations the view was taken that the natural parents of adopted children should remain anonymous, unknown to the children and the children unknown to them. Secrecy was the norm. This led to much heart break both on the part of the children and of the natural parents. More recently, revelation and openness, rather than anonymity and secrecy, have been established as the norms. However, this changed paradigm or community standard has itself not been without problems. (M. Berry, "The Effects of Open Adoption on Biological and Adoptive Parents and the Children: The Arguments and the Evidence", Child Welfare, Volume LXX No.6, November/December 1991, 637-651; L Hersov, "The Seventh Jack Tizzard Memorial Lecture: Aspects of Adoption", Journal of Child Psychology and Psychiatry, 1990, Vol 31 No. 4, 493-510).
Determining if there is a community standard in relation to situations such as that presented by the instant case and if there is such a standard, determining what it is, is difficult. It is essential that in arriving at a conclusion in respect of such matters an individual judge not merely states his or her own personal view and postulate that as the community standard. To do so would be ideosyncratic and that is not the process of the common law.
In the present case, there is no research to which I have been referred which would assist in relation to the existence or nature of a particular standard applicable to the situation of the instant case. However, reasoning from first principles, namely, that children are normally born during the lifetimes of their parents or within a relatively short time after the death of one or both of the parents, I would conclude that there was a general community standard which would not expect children to be conceived and born long after the death of the father. However, even if this view be not correct and the analogy of the research referred to above (As to 4) is applied, I am of opinion that the most that can be said is that there is no applicable community standard which would support the exercise of any discretion in favour of creating a situation of the kind postulated by the application in the present case. This would militate against exercising any discretion in favour of granting a consent.

General

There may well be other considerations which would be relevant to the exercise of a discretion of the kind submitted to exist by Counsel for the plaintiff in the present case. What they are or may be was not the subject of argument. Furthermore, particular circumstances in a given case may throw up additional matters that could be said to be relevant to the exercise of the postulated discretion in that case. However, having examined those headings of consideration to which I have already referred, I am of the opinion that none advances the case of the plaintiff and that overwhelmingly they militate against exercising the postulated discretion in favour of the plaintiff. Moreover, the examination of such headings of consideration, in my opinion, reveals reasons additional to those already stated, for the common law not to recognise a further special category for the exercise of the parens patriae jurisdiction that would cover the present case and ones like it.

CONCLUSION

For the reasons stated, I am of opinion that there is no jurisdiction in the Court to consent to the operative procedure sought by the plaintiff in respect of the patient. Furthermore even if there were such a jurisdiction, I would not in the exercise of discretion make orders as sought by the plaintiff.
As I have already stated, I declined on 25 April, 2000 to make the orders sought by the plaintiff. The formal orders of the Court now will be:
Summons dismissed.
By consent no orders to costs.

Amendments 25 April 2020 - Changed Reported decision notation from "40 NSWLR 231" to "49 NSWLR 231". 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: 25 April 2020

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