WIFE WANTS TO EXTRACT SPERM FROM DEAD HUSBAND.
In the matter of an Application by Adams (a pseudonym) [2020] NSWSC 1670 (24 November 2020)
This case involves the determination on whether or not the extraction and retention of the sperm of deceased as ordered by his wife is valid.
Facts:
The body of the late Grant Nye (“the deceased”) was located at premises situated in the Blue Mountains in New South Wales. The deceased was the husband of Kay Adams (“the plaintiff”). According to reports from police, the deceased hanged himself.
Discussions took place throughout the day between the plaintiff and the police as well as certain persons of the coroner’s office regarding whether or not steps could be taken to extract sperm from the deceased for the purposes of a subsequent in vitro fertilisation procedure that the plaintiff would undertake in due course.
The plaintiff sought primary relief in the form of an order authorising the performance of a procedure at Lidcombe Morgue by Dr Ying Li to extract the semen of the deceased and store the semen in an assisted reproductive facility.
At about 11pm, during the course of the hearing the Court discussed the application with the State Coroner, her Honour Teresa O'Sullivan. The State Coroner consented to the removal of sperm from the body of the deceased which procedure was identified as being conducted at approximately 9am the following morning.
Issue: Is the plaintiff authorised and entitled to give authority for the extraction of her dead husband’s sperm?
Law:
Analysis:
The deceased was found at a place other than a hospital and, as at the time of the application before the Court, was situated at Lidcombe Morgue. In light of that fact and the consent provided by the State Coroner, authority to remove tissue is governed by s 24 of the HTA.
Section 4(2A)(a) specifically provides “tissue” includes a reference to “semen”. It follows that sperm would fall within the inclusive definition, being a substance extracted from the human body.
A “senior available next of kin” is defined by the HTA as including “a person who was a spouse of the deceased person immediately before the deceased person’s death”: s4. The plaintiff, as the spouse of deceased at the time of his death, was the most senior available next of kin.
By s 24(3), the plaintiff was required to, “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”. In this respect, before the Court was an affidavit sworn by the plaintiff on 14 August 2019.
In light of the urgency of the proceedings, the above intimation as to an agreement to undertake reproductive procedures in the event of an untimely death of either spouse, together with the express desire “to honour his wishes”, when read in the context of the entire affidavit and summons, was accepted as a written instrument by the plaintiff authorising the removal of sperm from the deceased’s body for the purpose of its transplantation to the body of a living person, namely, in vitro fertilisation procedure that the plaintiff would undertake in due course.
The court considers that authorisation to be sufficient. In any event, it is desirable that in a further formal written instrument be brought in providing express authorisation to remove the sperm from the deceased’s body for the purpose of its transplantation to the body of a living person, namely, via a procedure of in vitro fertilisation to be conducted in due course.
Conclusion: In all the circumstances, the court finds that the plaintiff was authorised to give authority for the extraction and did exercise that authority pursuant to s 24 of the HTA, and the plaintiff is entitled to possession of the sperm.
