Practice and procedure - Application ex parte by widow for removal and storage of spermatozoa and associated tissue from body of person who had recently died - Application under O 52 r 3 - Whether permissible to make such order by reference to Human Tissue and Transplant Act 1982 (WA) s 22 and s 27 - Distinguishing order for use of material from orders for removal and storage of that material

Human Tissue and Transplant Act 1982 (WA), s 3, s 4, s 22, s 27

1 This was an urgent ex parte application for orders for the removal and storage of spermatozoa and associated tissue from a person who had died a matter of hours previously. That person (the deceased) was the spouse of the applicant. The ultimate purpose for the removal is the use of the material removed in an IVF procedure involving gametes taken from the applicant.

2 The application was heard late in the evening, on few papers, none of which had been filed. There was indeed no file for the matter at that time.

3 I granted orders in terms I will describe shortly. I did so on the basis that counsel undertook to have the papers filed and a file opened for this matter.

5 The basis for the application in the Rules of the Supreme Court 1971 (WA) (the Rules) or otherwise was not assigned in the papers presented to me.

6 In her oral submissions to me counsel referred me to the inherent jurisdiction of the court, the Rules O 52 r 2 and r 3 and the Human Tissue and Transplant Act 1982 (WA) (HTT Act) s 22 read with s 27. She also referred me to at least one prior instance in which the court had made orders of the kind sought. However, counsel could not refer me to any reasons for the issuing of those orders.

7 In my view, the basis for the present application should be put in O 52 r 3.

(1) The Court may for the purpose of enabling the proper determination of any cause or matter or of any question arising therein, make orders on terms for -

(a) the taking of samples of any property;

(b) the making of any observation of any property;

(c) the trying of any experiment on or with any property; or

(d) the observation of any process.

(2) An order under paragraph (1) may authorise any person to enter upon or into any land or building in the possession of any party, or to do any other thing for the purpose of getting access to the property.

9 I note that Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146 (Sanderson M) is authority for the proposition that the word 'property' in O 52 r 3 is capable of including tissue taken from the body of a person who subsequently died. In Roche the learned Master canvassed at some length a range of authorities bearing on the proposition. I consider his conclusion, expressed in the proposition I have described, to be correct. In any event, I consider it is one I should follow unless I consider it to be plainly wrong, which I do not. See In The Matter of York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922, Finkelstein J [22].

10 Further, I consider that I should not distinguish between the taking of samples of tissue taken from a body before death and the taking of a sample of tissue from a body after death.

11 Finally, I consider O 52 r 3 allows for the making of an order for storage of the material the subject of the order.

12 However, the making of orders referred to in O 52 r 3 is 'for the purpose of enabling the proper determination of any cause or matter or any question arising therein'. Was that element satisfied here?

13 Here the cause or matter was the proceedings which were to be commenced as I have indicated. The object of the cause or matter was to be, as I understood that cause or matter, the determination of whether or not the material to be removed might be used in an IVF procedure.

14 Having satisfied myself there was jurisdiction to make the orders sought, I considered whether or not in the exercise of my discretion to make the orders I should make them. For that purpose, I had counsel testify before me as to the reason for the urgency of her application assigned in her written submissions. That reason was in the expert opinion of the medical practitioner who had been providing IVF advice and was to arrange for the provision of certain IVF treatment to the applicant and the deceased. I will return to that treatment shortly. That expert opinion, in sum, was that removal of the material more than 24 to 36 hours after death would be of no use for any IVF procedure involving that material.

15 It seemed to me that that evidence, with the other matters I will shortly reach, was sufficient for me to exercise my discretion in favour of making the orders for removal and storage to the terms of which I will return.

Whether I am able to make the orders sought

16 There has been some contest on the authorities as to whether or not it is permissible to remove tissue from a deceased for a purpose like the present, or indeed for any purpose: see the authorities referred to in AB v Attorney-General for the State of Victoria [2005] VSC 180 (Hargrave J, 27 May 2005) and Y v Austin Heath [2005] VSC 427 (Habersberger J, 28 October 2005); see also Leiboff M, 'Post-mortem sperm harvesting, conception and the law: rationality or religiosity?' [2006] QUTLJ 12.

17 The Victorian authorities distinguish, as the orders I made do, between the making of orders for removal and storage, on the one hand, and the making of orders for the use of the material so removed and stored.

18 On those Victorian authorities I am satisfied that it is permissible to make orders of the sort I made in this case, at least where the conditions in legislation like HTT Act s 22 and, where applicable, s 27, are met. Those provisions correspond to ones in legislation in Victoria that were referred to and relied upon in AB and Y, both of which concerned removal of tissue for the purposes of performing an IVF procedure.

22. Designated officer may authorise removal of tissue from bodies in hospital

(1) A designated officer for a hospital may, subject to and in accordance with this Part, authorise the removal of tissue from the body of a person who has died in hospital or whose dead body has been brought into the hospital -

(a) for the purpose of the transplantation of the tissue to the body of a living person; or

(b) for use of the tissue for other therapeutic purposes or for medical or scientific purposes.

(2) A designated officer for a hospital may authorise the removal of tissue from the body of a person who has died in the hospital or whose dead body has been brought into the hospital -

(a) where, after making inquiries, the designated officer is satisfied that the deceased person during his lifetime expressed the wish for, or consented to, the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1) and had not withdrawn the wish or revoked the consent; or

(b) where, after making inquiries, the designated officer has no reason to believe that the deceased person had expressed an objection to the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1) and the designated officer is satisfied that the senior available next of kin consents to the removal of tissue from the body of the deceased person for the purpose or a use referred to in subsection (1).

(3) The authority of a designated officer to authorise the removal of tissue from the body of a deceased person under this section is restricted -

(a) in the case of the circumstances referred to in subsection (2)(a), by the expressed terms of the wishes or consent of the deceased person;

(b) in the case of the circumstances referred to in subsection (2)(b), by the consent of the senior available next of kin,

both as to the tissue which may be removed and as to the purpose or use of the tissue.

(4) The senior available next of kin of a person may make it known to a designated officer at any time when the person is unconscious before death that he consents to the removal, after the death of the person, of tissue from the body of the person for the purpose or a use referred to in subsection (1), but the designated officer shall not act on such an indication if the person recovers consciousness.

(5) Where there are 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of "senior available next of kin" in section 3, an objection by any one of those persons has effect for the purposes of this section notwithstanding any indication to the contrary by the other or any other of those persons.

27. Coroner's consent to post-mortem required in some cases

(1) If the designated officer for a hospital or, in a case to which section 26 applies, the senior available next of kin, has reason to believe that the death of a person is or may be a reportable death, the designated officer or the senior available next of kin, as the case may be, shall not authorise a post mortem examination of the body of the deceased person unless the coroner has given his consent to the examination.

(2) Section 26(3) does not operate in a case where the death of a person is or may be a reportable death unless a coroner has given his consent to the post mortem examination.

(3) A coroner may give a direction either before or after the death of a person that his consent to a post mortem examination of the body of the person is not required and, in that event, subsection (1) does not apply to or in relation to a post mortem examination of the body of the deceased person.

(4) A consent or direction by a coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.

(5) A consent or direction may be given orally by a coroner, and if so given, shall be confirmed in writing.

20 Counsel before me agreed that the circumstances of the death of the deceased made that death a 'reportable death' within HTT Act s 27 (see s 3(1) 'reportable death').

21 The applicant testified before me that she had been married to the deceased for four years; that they had sought and were undergoing IVF procedures to enable her to conceive; that at the date of the death of the deceased, 5 November 2008, they had an appointment, for 16 November 2008, at the practice of the medical practitioner I have referred to, for removal from her of eggs and from him of spermatozoa and associated tissue for that purpose; and that she was not aware of any qualification to or withdrawal of his consent to the removal of that material from him for the purpose indicated.

22 Counsel for the applicant testified before me that the office of the coroner was aware of the proposal to remove the spermatozoa and associated tissue from the body of the deceased. Counsel further testified that a duly authorised agent of the coroner had confirmed orally the coroner's consent to the removal. Counsel indicated that consent could be confirmed in writing, and, following the hearing, I requested counsel to provide that confirmation for the file.

23 On the basis of this testimony I was satisfied that the conditions referred to in HTT Act s 22 and s 27 were met in the way indicated by AB and Y such as to permit me to make the orders I made.

24 The orders applied for by counsel included an order of the suppression kind in respect of this hearing and its outcome. However, after taking the instructions of her client, counsel indicated that that order was no longer sought.

25 I determined after discussion with counsel that the following orders should be made. The terms of these orders follow the terms of those sought in Y, so far as I can determine those terms from that judgment.

1. There be permission for a legally qualified medical practitioner or the designated officer of the [hospital where the deceased's body was located] within the meaning of the [HTT Act: see s 4] forthwith to remove spermatozoa and associated tissue from the body of [the deceased] and such spermatozoa and associated tissue shall be stored in accordance with the Human Reproductive Technology Act 1991 (WA).
2. The spermatozoa and associated tissue so removed and stored not be used for any purpose without an order of this court.

26 In the hearing and in the presence of both counsel and the applicant I particularly stressed order 2. That order made it clear, in my view, that there was, and is, no question of using the material to be removed from the body of the deceased for the IVF procedure the applicant seeks to have performed without a further hearing, at which at least the Minister would have the opportunity to appear.