Applicant Seeks Order Permitting Removal of Spermatozoa from Husband
An ex parte application for order permitting removal and storage of spermatozoa and associated tissue from the body of applicant's de facto husband was filed by the applicant. The Court, in adjudicating this dispute, assessed whether an order of court granting permission for the removal and storage of spermatozoa and associated tissue from a deceased person pursuant to s 22 of the Human Tissue and Transplant Act 1982 (WA) is required.
Facts:
The applicant and Mr B have been in a relationship for about 8 years and live together. Mr B is 36 years old. On 30 January 2022, Mr B suffered a brain aneurysm and was admitted to the intensive care unit of SCGH. Mr B has not regained consciousness and, at the time of the hearing, was on life support.
The medical team at SCGH is waiting to receive consent from the applicant to turn off Mr B's life support. The applicant has contacted Fertility Specialists of WA (FSWA) about the removal of Mr B's spermatozoa. FSWA is willing to perform the procedure if the court makes an order authorising the procedure. The application is supported by the parents of Mr B who were in court with the applicant during the hearing.
It was not in dispute that, at the time of the hearing, Mr B was still alive although on life support. The de facto partner of Mr B (taking account of the factors in s 13A(2) of the Interpretation Act) and accordingly is the 'senior available next of kin' as defined in s 3 of the Act. An application was required to be made to the court for an order under s 22 of the Act because a private fertility clinic was going to undertake the removal of the spermatozoa. In correspondence from the clinic, they drew attention to the fact they were not governed by s 22 of the Act, but the Human Reproductive Technology Act 1991 (WA).
FSWA indicated they would only undertake the task if a court order were obtained.
Issue:
Whether or not an order of court granting permission for the removal and storage of spermatozoa and associated tissue from a deceased person pursuant to s 22 of the Human Tissue and Transplant Act 1982 (WA) is required.
Applicable law:
Human Reproductive Technology Act 1991 (WA) - relied upon in the submission that consent
Human Tissue & Transplant Act 1982 (WA) - provides that 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 for use of the tissue for other therapeutic purposes or for medical or scientific purposes.
Rules of the Supreme Court 1971 (WA) - provides that the court has jurisdiction under either s 22 of the Act itself together with s 22 of the Act to make an order of the type sought by the applicant, provided the conditions stipulated in s 22 for the removal of tissue are met.
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H [2020] WASC 99 - Derrick J made orders that the relevant medical practitioner or designated officer only had permission to remove spermatozoa and associated tissue once the person concerned was in fact deceased, which would occur shortly after life support equipment was turned off.
Analysis:
Before the court can make an order under the Act, the Court required to be satisfied of the following matters:
(a) Mr B's dead body had been brought into SCGH or Mr B had died in SCGH;
(b) spermatozoa is 'tissue';
(c) the proposed removal of the spermatozoa and associated tissue was for 'medical or scientific purposes'; and
(d) the 'senior available next of kin' consented to the removal of the spermatozoa.
The word 'tissue' as used in s 22 includes spermatozoa by reason of the definition of 'tissue' contained in s 3 of the Act.
The effect of the orders was restricted to permitting something to happen which, if it did not happen urgently after the death of Mr B, would forever preclude the applicant seeking to make use of Mr B's spermatozoa in an attempt to conceive a baby. Furthermore, it is in the public interest for people in the position of the applicant to be able to come to court without fear their privacy will be invaded at a time of obvious stress and trauma.
Conclusion:
The Court was satisfied that the court had jurisdiction to make an order of the type sought. Orders were made Dr Roger Perkins of Fertility Specialists of WA, another legally qualified medical practitioner or the designated officer of Sir Charles Gairdner Hospital within the meaning of s 4 of the Human Tissue and Transplant Act 1982 (WA) (HTT Act) to remove forthwith upon the death of [Mr B] in Sir Charles Gairdner Hospital spermatozoa and associated tissue from the body of [Mr B] and such spermatozoa and associated tissue shall be stored in accordance with the HTT Act. The spermatozoa and associated tissue so removed and stored was not to be used for any purpose without an Order of this Court. No names of the parties to the proceedings or of [Mr B] should be published until further order of this court.
