HIS HONOUR: This is the hearing of an urgent summons filed in the most tragic of circumstances. This morning the late Paul Lum passed away suddenly at home after suffering cardiac arrest. At the time of his death he had been married for over two years to the plaintiff, Catherine Bridget Noone. The plaintiff and Ms Noone commenced a relationship in 2006. Prior to Mr Lum's passing in 2020, he and Ms Noone had commenced planning to have children.
In 2019 they decided to embark upon using in vitro fertilisation ("IVF"). In August 2019 they commenced that process with an IVF facility known as Genea, who are named as the defendant to these proceedings. Upon commencing with Genea they signed various consent forms which I will describe shortly. Despite the terrible loss she has suffered, in the most trying of circumstances, some time during today Ms Noone contacted solicitors. They have been able to secure an urgent hearing in this Court to seek orders designed to advance Ms Noone's IVF treatment by removing the testes and spermatozoa from the late Mr Lum.
The evidence is that that process can only be undertaken within 24 to 36 hours after death. Hence, the matter comes before this Court in the most urgent of circumstances under great stress for the moving party.
Noone v Genea [2020] NSWSC 118 | Case summary | Zoe
At the outset it should be noted that the legal framework within which this matter comes to be decided is significantly different from that addressed by Fagan J in Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 ("Chapman").
Chapman concerned the circumstance where orders had been made for the recovery of sperm from the late Mr Chapman while he was still alive but on life support. Section 24 of the Human Tissues Act 1983 was not engaged. In Chapman, Fagan J later concluded that s 36 of the Human Tissues Act meant that orders should not have been made in that case for the removal of testes and spermatozoa from the late Mr Chapman.
Section 36(1) provides:
A person shall not remove tissue from the body of any other person (whether living or deceased) except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by the firstmentioned person.
Thus, s 36 itself has an exception for "a consent or authority … under this Act". In this case the relevant authority is said to be found in s 24. Section 24 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. (emphasis added)
At present, the body of the late Mr Lum is at a funeral parlour. Accordingly, s 24 is engaged in that the body of the deceased person is at a place "other than a hospital". Further, for the purposes of s 24(3) the, "senior available next of kin" is relevantly defined by s 4 to be his spouse, in this case, Ms Noone.
To that end, Ms Noone has executed an instrument in writing authorising the removal of the relevant tissue from the late Mr Lum's body for the stated purpose of "assisted reproductive treatment". Subsection 24(3) refers to such use being for "other therapeutic purposes or for medical purposes or scientific purposes". In Chapman at [63], Fagan J concluded that the expression, "medical purposes or scientific purposes" is wide enough to include use in assisted reproductive procedures. His Honour referred to other decisions to the same effect.
Subsection 24(4) precludes a senior available next of kin from granting any authority under s 24(3), if it appears that, "after making such inquiries as are reasonable" as to whether the deceased person had, during their lifetime, expressed an objection to the removal of tissue from their body after their death, unless based on the most recent views expressed by the deceased person, it appears the person no longer had an objection to the removal of tissue from the person's body (s 24(4)(a)), or if another next of kin of a higher order of priority objects (s 24(4)(b)). Subsection 24(4)(b) is of no relevance.
In relation to s 24(4)(a), not only was there no objection by the late Mr Lum to the removal of spermatozoa, the very significant number of consents that were signed by Mr Lum while he was undertaking the IVF process with Genea confirms beyond any doubt, that he would certainly have agreed to the removal of tissue from his body for that purpose. In particular, one of the consents that he signed concerned the use of embryos if he should die or become unavailable to provide consent. It seems to me inherently unlikely that having agreed to that, Mr Lum would raise any objection to the removal of his testes and spermatozoa after his death for the purposes of fertilising an embryo.
Accordingly, I am satisfied that a valid instrument in writing for the purposes of s 24(3) for the stated purpose has been issued and, subject to one matter, that is sufficient to address s 36(1).
Subsection 25(3) of the Human Tissues Act precludes s 24(1) operating in relation to a person to whom the section applies, unless a Coroner has given consent to removal of tissue from the person's body. In this case it is, as I have said, a case under s 24(3) rather than s 24(1). It is not necessary to consider the operation of s 25 further because the section is only engaged in respect of a person's whose death a Coroner has jurisdiction to hold an inquest under the Coroner's Act 2009.
In this case the jurisdiction of a Coroner to hold an inquest is defined relevantly by s 21(1) of the Coroners Act, namely, that the relevant death is either a "reportable death" or one in which a medical practitioner has not given a certificate as to the cause of death. In this case there is such a medical certificate. Further, there is no reason to believe that anything to do with Mr Lum's death would answer the description of a reportable death, specifically that he either died of a violent or a natural death, that he died a sudden death the cause of which is unknown, that he died under suspicious or unusual circumstances or that he died as a result of some health‑related procedure in circumstances where that would not be reasonably expected or that his death was anything related to his absence from a mental health facility. In those circumstances it is not necessary to consider s 25 of the Human Tissues Act further.
There are four substantive orders sought this evening. The first is a declaration that Ms Noone is the "senior available next of kin" for the purposes of the Human Tissues Act. It follows that declaration will be made. The next is a declaration that she has issued a valid written instrument for the purposes of s 24(3). It follows from what I have said that the declaration will be made. The third order is that the reproductive tissue be extracted and be released to Ms Noone, but only if she causes a suitably equipped transportation company or courier to collect it on her behalf for transfer to an authorised facility. The fourth order authorises the storage of that equipment at a suitable storage facility until any order granting the use of that tissue is made, should such order be necessary.
As I understand it those two orders, as well as the declarations, have been requested by Genea before they will provide a medical expert to undertake what is required. There is, in this case, significant reason to believe that the existing consents that Mr Lum gave may mean that no further intervention by the Court is necessary, however, it is not necessary to decide that at this stage. It suffices to state, that I will make these orders.
[3]
Orders
THE COURT DECLARES that:
(1) Ms Catherine Bridget Noone is, for the purposes of the Human Tissue Act 1983, the Senior Available Next of Kin of the late Mr Paul Lum.
(2) Ms Catherine Bridget Noone, has by written instrument dated 19 February 2020 (being Exhibit A in the proceedings), validly authorised under s 24(3) of the Human Tissues Act 1983, the extraction of all and any reproductive tissue from the body of the late Mr Paul Lum, as is necessary for the purpose of Assisted Reproductive Treatment, such purpose being a "therapeutic or medical purpose" within the meaning of s 24(3).
THE COURT ORDERS that:
(3) Any such reproductive tissue extracted from the body of the late Mr Paul Lum is to be released to Ms Catherine Bridget Noone, but only upon her causing a suitably equipped transportation company or courier to collect it on her behalf for transport to an authorised facility.
(4) Ms Catherine Bridget Noone is authorised to arrange for the storage of the removed reproductive tissue at a suitable storage facility until any order granting the use of that tissue is made, should such order be necessary.
[4]
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Decision last updated: 21 February 2020