Plaintiff v First Defendant

Plaintiff v First Defendant - [2005] VSC 427 - VSC 2005 case summary — Zoe

Introduction

1 These reasons for judgment concern an order made by me sitting in the Practice Court. Due to the urgent nature of the issues involved, I announced, at the time of making my order, that I would publish my reasons at a later date and I now do so.

The Proceeding

2 This was an application by originating motion, filed on 13 August 2004, pursuant to which the plaintiff, Ms Y, sought, in part, an order that permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of her husband, Mr X, who was then in a critical condition at the Austin Hospital, and that such spermatozoa and tissue be stored in accordance with the Infertility Treatment Act 1995 ("the ITA") or, in the alternative, an order that upon the death of Mr X permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from his body and that such spermatozoa and tissue be stored in accordance with the ITA. Further, the plaintiff sought an order that the spermatozoa and associated issue so removed and stored not be used for any purpose without an order of this Court.

3 The first defendant in the proceeding was Austin Health. Mr Quinn of counsel, who appeared for the plaintiff, explained that it had been joined as a defendant as any order made would have to be implemented at the Austin Hospital in the first instance. The second defendant in the proceeding was the Royal Women's Hospital. It had been approached in its capacity as a licensed authority able to undertake the extraction and storage of the spermatozoa, but it had indicated that there was no licensed doctor at the hospital who was prepared to perform the procedure. Whether or not they were appropriate defendants, both of them were represented at the hearing and helpful arguments were presented on their behalf concerning the issues raised by the application.

4 At the hearing before me on 13 August 2004, the plaintiff withdrew the application for an order that spermatozoa be removed whilst Mr X was alive. Therefore, the only order sought in relation to the removal of spermatozoa was one upon the death of Mr X.

The Background to the Application

5 The plaintiff and Mr X were married in 1997. Prior to their marriage they had been in a close relationship for some seven years. The plaintiff was aged 33 years and her husband was aged 34 years at the time of this application. They had no children. However, according to the plaintiff's affidavit, they had always intended to have children. Over the course of about 18 months prior to the application they had attempted to achieve a pregnancy without success. They had intended to continue with their attempts to conceive.

6 In late June 2004 Mr X became ill with what was initially thought to be the flu. On 2 July Mr X collapsed at home. He was taken to the Dandenong Hospital where he was diagnosed with pneumococcal pneumonia and sepsis which led to multi-organ failure, in particular of the liver and kidneys. As a result, doctors determined that Mr X required a liver transplant and on 5 August 2004 he was transferred to the Austin Hospital because of that institution's expertise in liver and kidney conditions. However, following a biopsy it was determined that Mr X's condition was too serious to permit a liver transplant.

7 This application was made whilst Mr X was being treated in the Intensive Care Unit at the Austin Hospital for a combination of conditions, including cirrhosis of the liver, multi-organ failure, sepsis, circulatory failure, encephalopathy, acute renal failure and respiratory failure. Mr X also had recurrent oesophageal bleeding and on the day prior to the application coming before me, he had lost over two litres of blood from his oesophagus. Mr X's consciousness was impaired. He was only intermittently aware and interactive. When conscious he was occasionally able to mouth words but was unable to speak aloud. Accordingly, the extent to which Mr X was able to comprehend what was said to him was uncertain. Because he was encephalopathic there was real doubt about his competency.

8 Mr X was not aware of the making of this application nor had he consented to any of the orders sought. Given his critical condition it was uncertain whether he could provide the necessary consent. Further, both the plaintiff and her parents-in-law considered that it would be detrimental to his recovery to attempt to discuss with him a proceeding in which orders were sought that contemplated his death.

9 Mr X had registered as an organ donor. The certificate issued by the Organ Donor Registry evidenced that it was his intention that all of his bodily organs and tissues be donated upon his death.

10 The plaintiff made the application in order to enable her to have the opportunity at some time in the future to become pregnant with X's sperm, if she ultimately decided to do so.

The Course of the Hearing

11 On the first day of the hearing, on Friday 13 August 2004, I was informed that Mr X's life expectancy was uncertain and that according to medical reports he had a significant chance of dying in the following weeks. Mr Quinn of counsel, who appeared for the plaintiff, stated that the application in anticipation of death was necessary, as there were potential difficulties with the viability of sperm if not taken from the deceased person within 12 to 18 hours after death. However, it subsequently became apparent that the 12-18 hour window was no longer an issue provided the body was stored at four degrees or less, which could readily be done. As there was still time available, I indicated that I would be assisted by hearing from the Attorney-General in relation to the construction of the ITA.

12 The hearing recommenced on Tuesday, 17 August 2004, with counsel present on behalf of the Attorney-General of Victoria in the capacity of amicus curiae. After hearing further argument I announced my decision that in the event of Mr X's death I would quickly reconvene the Court, and, subject to satisfaction of certain formal matters, I would allow the application. I also indicated that I would subsequently publish my reasons on this important issue.

13 That evening Mr X passed away at the Austin Hospital. Early the following morning the hearing resumed and I made the order sought. The "Other Matters" part of the order read as follows:

[14]

Whether the application entailed the Court making orders in the nature of those described in that passage is considered below.

18 The question of jurisdiction to make orders similar to those sought in this proceeding has been considered in a number of earlier cases both in this Court and other State Supreme Courts.

19 In AB v Attorney-General of Victoria[6] Gillard J noted "the uncertainty of the jurisdiction and its exercise" and later stated that "the question of the Court's jurisdiction and the exercise of it are matters which will have to be explored, as will the question of the use of the semen hereafter, if at all." In that case, Ms AB and her husband were residents of the Australian Capital Territory. The husband, who was in Victoria for the purposes of his work, was killed in a car accident and Ms AB sought to have her husband's sperm removed. In giving brief reasons following an extremely urgent application Gillard J mentioned some of the provisions of the Human Tissue Act 1982 ("the HTA") and of the ITA which would have to be considered in the future.[7] Gillard J granted permission to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of the deceased and ordered that such spermatozoa and tissue be stored in accordance with the ITA. The orders sought in the current application were modelled on those made by Gillard J.

20 In Fields v Attorney-General of Victoria[8], an application was brought by the parents of the deceased for an order from the Court for the removal of spermatozoa and associated tissue from their son who died as a result of a car accident. The deceased was aged 23 years. The deceased's wife was also involved in the accident and, at the time of the application, was in intensive care at the Alfred Hospital and not in a position to make the application herself. Prior to the accident the couple had been attending a fertility treatment program at the Royal Women's Hospital. Again, the matter was urgent. Coldrey J referred to an order that he had made in a previous case and to the order made by Gillard J in AB v Attorney-General of Victoria and said that he therefore assumed "that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out."[9] Coldrey J ordered that the spermatozoa be removed and stored. Although his Honour alluded to possible legal impediments to the ultimate fertilisation of the deceased's wife with any sperm or tissue removed, he described that as "an issue for another day."[10]

21 In the first of the interstate cases, MAW v Western Sydney Area Health Service[11], O'Keefe J held that the parens patriae jurisdiction of the Supreme Court of New South Wales, which was protective of living persons, did not extend to the authorisation of a non-therapeutic procedure such as the removal of semen from a comatose and dying patient. His Honour also considered whether either the Guardianship Act 1987 (NSW) or the Human Tissue Act 1983 conferred jurisdiction but held that they did not. In that case, the husband and wife had "decided not to have children until they got on their feet financially."[12] At the time of the husband being struck by the bull bar on a heavy vehicle, with resultant severe brain damage, the couple had "no plans" to have a child.[13]

22 Mr Quinn said that the plaintiff in this application did not rely on the parens patriae jurisdiction. He also submitted that O'Keefe J did not consider whether some area of the Court's inherent power, other than the parens patriae jurisdiction, provided a source of power to make the orders sought. Mr Quinn submitted that the Court's inherent power was much wider than that assumed by his Honour.

23 In MAW O'Keefe J also held that, even if he had a discretion to make the orders sought, it should not be exercised in favour of the plaintiff. One of the factors considered by his Honour in coming to that conclusion was the likelihood that the semen of the patient, if extracted, would be used for the impregnation of his wife. In respect of that factor, his Honour said:

[15]

"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."[14]

[36]

The definition of "transplantation" contained in The Shorter Oxford English Dictionary includes "the operation of transferring an organ or a portion of tissue from one part of the body, or from one person or animal, to another."[30] The plaintiff submitted that the word "transplantation" was apt to describe the removal of sperm from one person for insertion into another. It was not to the point that it would not be inserted into the same part of the human body from which it came or that it would not be inserted to grow in the same manner in which it grew within the person from whom it was removed.

37 I do not agree. It seems to me that "transplantation" is concerned with the use of one person's organs, such as heart, liver or kidneys, to replace the same part of another person's body, which is no longer carrying out its designated purpose or task. Placing spermatozoa into a woman or using the sperm to fertilise an egg outside the body and then placing the fertilised egg into a woman does not, in my opinion, fall within the common meaning of "transplantation." As Ms Hampel SC, who appeared with Mr Moloney for the second defendant, submitted, the concept of "transplantation" in s.26(1)(a) is limited to doing something to a person who is in need of a supplement or replacement. It does not cover the circumstances of the creation of a new life. I therefore reject the submission that the proposed procedure comes within s.26(1)(a) of the HTA.

38 Alternatively, the plaintiff submitted that the facts of the application fell within the "medical purposes" aspect of s.26(1)(b), in that the removal of spermatozoa was for the medical purpose of assisting another person to become pregnant by "a fertilisation procedure" within the meaning of the ITA. In that Act, the various definitions of "a fertilisation procedure" refer to it as a "medical procedure."[31]

39 The defendants queried whether the obtaining of the sperm could be said to be for a medical purpose when that purpose was not related to Mr X's needs or that purpose could not be achieved under the ITA. Although they are difficult questions, I am satisfied, for present purposes, that the obtaining of the sperm would be for "medical purposes." After all, the section proceeds on the basis that the person, from whom the tissue is to be removed, has died. Therefore, the requirement that the use of that tissue be for "medical purposes" cannot be related to his medical needs.

40 Having decided that the removal of the sperm could be said to be for "medical purposes", it is unnecessary to deal with the plaintiff's further submission, in respect of s.26(1)(b), that the removal could be "for use of the tissue for other therapeutic purposes."

41 The next issue was whether s.26(1)(c) of the HTA was applicable. That depended on deciding whether the fact that Mr X had registered as an organ donor meant that he had consented in writing to "the removal after his death of tissue from his body for such a purpose or use." In MAW, O'Keefe J held that the fact that the patient had, on his driver's licence, elected to become an organ donor was not relevant. His Honour said that the consent to organ donation did not "extend to semen" nor could it "be construed as any consent in respect of semen or its use whether posthumously or not."[32] The existence of a similar election by the deceased in Gray was also treated as irrelevant.[33]

42 I do not consider that Mr X's registration as an organ donor is sufficient consent within the meaning of s.26(1)(c). I agree with the view expressed by O'Keefe J in MAW that it is one thing for an organ donor to consent to the removal of his heart or liver, for example, in order to save a life or lives. It is a completely different proposition to suggest that such consent also incorporates the use of spermatozoa to create a new life. At best, the registration as an organ donor indicated that Mr X was prepared to have his body "interfered with" after his death by medical procedures.

43 The plaintiff then submitted that the facts of the application satisfied the requirements of s.26(1)(d) of the HTA, in that Ms Y consented to the removal. By virtue of the definitions of "senior available next of kin" and "spouse" in s.3(1) of the HTA, it was Ms Y's consent that was relevant. Sub-section 26(1)(d) is expressed to be subject to s.26(3), which provides that:

[51]

Before a woman undergoes a treatment procedure "she and her husband must consent to the carrying out of" that procedure (s.8(2) of the ITA). That consent must be informed consent after the woman and her husband have received counselling from an approved counsellor (ss.9(1), 10(1) and 11(1) of the ITA). A doctor must be satisfied that "the woman is unlikely to become pregnant from an oocyte produced by her and sperm produced by her husband other than by a treatment procedure" or that if fertilisation occurred by natural means it could result in a genetic abnormality (s.8(3) of the ITA).

51 In McBain v The State of Victoria[34], Sundberg J held that the requirement in s.8(1) of the ITA that the woman, in order to be eligible, be married or living with a man in a de facto relationship was directly inconsistent with s.22 of the Sex Discrimination Act 1984 (Cth) which made it unlawful to refuse to provide services to a person on the ground of that person's marital status. Therefore, for the purposes of s.8(1), it was not relevant that Ms Y would be a widow at the time of the treatment procedure.

52 Nevertheless, I was informed that the Infertility Treatment Authority ("the Authority"), the body established under the ITA in part to administer, and monitor compliance with the licensing and approvals system under the Act and to grant exemptions under the Act[35], had advised authorised doctors and licensed places that it regarded the expression "unlikely to become pregnant" in s.8(3) as meaning "clinical", as opposed to "social", infertility. Ms Hampel submitted that there was no evidence that Ms Y would satisfy the clinical infertility requirement.

53 Further, it goes without saying that, by virtue of his death, Mr X was unable to give any of the consents required of donors or to have received counselling from an approved counsellor. However, it was argued on behalf of the plaintiff that as Ms Y would, ex hypothesi, be a widow the question of the consent of, and counselling for, "her husband" was irrelevant. She was the only one who would have to satisfy these requirements.

54 More difficult issues were raised by the consent requirements of s.12 of the ITA. The consent of the donor of the sperm, if he is not the husband of the woman on whom the treatment procedure is to be carried out, is required either before the sperm is used in a treatment procedure (s.12(1) of the ITA) or before the sperm was used to form an embryo (s.12(3) of the ITA). By virtue of his death, it was arguable that Mr X was not the husband of Ms Y at the relevant time and therefore no consent had been given. The outcome of this issue possibly depended on what was meant by "the husband" in s.12 in circumstances such as the present case.

55 Another difficulty confronting the plaintiff was s.43 of the ITA. At the time of the application that section provided as follows:

[66]

I was also informed that the Authority had under s.56(2) of the ITA refused the applicant in AB permission to export the sperm interstate.

67 Another answer to the difficulties suggested on behalf of the plaintiff was that Ms Y might be able to store Mr X's sperm for up to 10 years (s.51(1)(b)(i)) or longer with the approval of the Authority (s.51(1)(b)(ii)) and that the legislative requirements might be changed in the meantime. Apart from the fact that this was purely speculative, the submission still ran up against the lack of consent and counselling problem, which I consider would be highly unlikely to be changed retrospectively. I therefore reject this argument.

Conclusion

It seemed to me, therefore, that very difficult issues concerning the construction of the provisions of the ITA were raised by this application, and that, despite the helpful submissions by all parties, there would not be sufficient time to resolve them finally before the application might be rendered futile by the inability to remove the spermatozoa and associated tissue relatively soon after the death of Mr X. As I have mentioned, he in fact died on the night of the second day of the hearing. In my opinion, the way forward was to follow the example of those Judges, in particular the Victorian Judges, who had drawn a distinction between the making of an order for the removal of the spermatozoa and associated tissue and any subsequent order as to the use which might be made of that tissue.

68 I was satisfied that the Court had inherent jurisdiction to make the orders sought, at least on the basis of treating the application as akin to an interlocutory injunction and considering whether it raised a serious question to be tried. Despite the problems for the plaintiff raised by the ITA I was not yet persuaded that I should conclude that there was a statutory prohibition in Victoria on the use of sperm from a deceased person. In the words of Coldrey J, that was "an issue for another day."[40] In those circumstances, like Atkinson J, I considered that the balance of convenience clearly required that the application be granted. If it was refused, then the plaintiff could never become pregnant by the deceased. If it was granted, then that possibility remained open to the plaintiff, subject also to further consideration and approval by the Court. Accordingly, I gave the indication referred to above that, in the event of Mr X's death, I was disposed to grant the application, and subsequently I made the orders in question.

69 One final comment. I accept that there will be emotional stress on an applicant in circumstances such as the present, even to the extent that it might be considered that an application was not "a result of careful or rational deliberation."[41] Nevertheless, in my respectful opinion, the reasoning of O'Keefe J and Chesterman J on this particular aspect, as set out above, means that the opportunity for calm and mature consideration is forever denied to an applicant. I am not persuaded that in the exercise of any discretion the concern expressed by their Honours is entitled to the weight which they gave it.

Subsequent Developments

70 Not long after I made the order I was informed by the plaintiff's lawyers that tests on the spermatozoa and associated tissue removed from the body of Mr X had revealed that conception would not be possible. This meant that there would be no further application to the Court for permission to use the sperm and that the "issue for another day" would not be resolved in this proceeding.

71 Secondly, in the far too long a period between the making of the order and the publication of my reasons, application was made to the Court by Ms AB for certain declarations concerning the use of the sperm removed from the body of her deceased husband pursuant to the order of Gillard J. The judgment of Hargrave J[42] in respect of that application has determined many of the debatable points considered by me in the above reasons.

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Parties

Cases Cited (6)