In the matter of an Application by Adams (a pseudonym) (No 2)

1. [1]

   On the evening of 14 August 2019, Ms Kay Adams (a pseudonym), the plaintiff, made an urgent application to this Court seeking orders for the removal of gametes from the deceased, the plaintiff’s late husband, who had died by his own hand earlier that day.

2. [2]

   On the same evening (upon the giving of consent by the State Coroner), the Court made orders which permitted the removal of gametes from the body of the deceased and their storage at Genea Limited (“Genea”) in Sydney, pending further order: In the matter of an Application by Adams (a pseudonym) [2020] NSWSC 1670 (“Adams No 1”). Those orders were, relevantly, as follows:

3. [3]

   By a notice of motion filed on 11 September 2020, the plaintiff sought orders permitting her to transfer the gametes extracted from the deceased’s body after his death to the Australian Capital Territory (“ACT”) for the purposes of invitro-fertilisation (“IVF”) treatment. (Throughout the proceedings “the gametes” were also referred to interchangeably as “the tissue sample” and “sperm”).

4. [4]

   The Attorney General of New South Wales (“Attorney General”) was granted leave to intervene in the proceedings on 12 November 2020, in the absence of an active contradictor.

5. [5]

   Cases involving orders sought from the Court in connection with the retrieval of sperm from a person recently deceased typically arise in circumstances of extreme urgency and emotion, usually ex parte, and where the Court often receives only limited submissions from the party or parties involved. Further, such applications sometimes involve (particularly in relation to the subsequent use of such sperm) relatively complex issues in relation to the application of the Human Tissue Act 1983 (NSW) (“the HT Act”) and the Assisted Reproductive Technology Act 2007 (NSW) (“the ART Act”).

6. [6]

   By the time of the hearing of the notice of motion, issues had arisen in relation to the orders sought and, in particular, whether the terms of the ART Act authorised the storage and use of a tissue sample. Those issues evaporated, however, when the plaintiff amended the motion to seek the following orders, which attracted the consent of the Attorney General:

7. [7]

   Those consent orders were made together with an order removing the plaintiff’s late husband as a defendant to the proceedings.

8. [8]

   These are the Court’s reasons for judgment in that respect.

FACTUAL AND PROCEDURAL BACKGROUND

1. [9]

   Ms Adams and the deceased had been in a relationship for around six years by the time they were married in October 2015. She was 28-years-old at the time of the application before the Court.

2. [10]

   In 2017, Ms Adams was diagnosed with endometriosis. That condition, however, had responded well to treatment and Ms Adams and her late husband had spoken about having a family in 2018. Ms Adams gave evidence of a conversation she had with her late husband in May 2019, following the death of a work colleague on a job site, in which she recalled her late husband had referred to having done some research about freezing sperm within 24-hours after death. During that conversation, Ms Adams recalled she had agreed to do “everything possible if that ever happened to you”.

3. [11]

   Ms Adams’ evidence was that starting a family “was an extremely important part of [her late husband’s] life” and that she wanted to “honour his wishes”.

4. [12]

   On 14 August 2019, the deceased’s body was located, the deceased having taken his own life that day. There was no evidence of the deceased having left a will.

5. [13]

   After orders made by the Court on 14 August 2019, the extraction of sperm was successful and Ms Adams’ evidence was that the gametes extracted were “viable sperm that [was] capable of being used in a successful [IVF] procedure”. The gametes were then stored at Genea, with 14 straws collected. The tissue sample remained stored at Genea.

6. [14]

   Ms Adams subsequently made inquiries with Genea and stated that she has been advised that they do not believe that they are permitted to perform a “posthumous IVF procedure” in New South Wales.

7. [15]

   Ms Adams made further inquiries with Professor Stephen Robson, a specialist in the ACT, who was willing to undertake the procedure. She was advised by Genea that it required a court order permitting the release of the gametes to a third party. She stated that she would liaise with Genea to organise a suitable transport company to safely transport the gametes from the current storage facility to a storage facility as directed by Professor Robson. Her evidence was that she proposed to commence counselling and the IVF procedure within the next two years.

THE CONSENT ORDERS

1. [16]

   By the consent orders, the plaintiff obtained, in substance, an order permitting Genea to release the frozen gametes to her (and an authorised transport company to be arranged by her) “to be transferred to Professor Stephen Robson of the Australian National University Medical School” to be used in accordance with the laws in the ACT.

Human Tissue Act

1. [17]

   The removal of human tissue from a deceased person is regulated by the HT Act. Section 4(1) of the HT Act defines “tissue” as including “an organ, or part, of a human body and a substance extracted from, or from a part of, the human body”.

2. [18]

   Section 24(1) of the HT Act provides that, when the body of a deceased person is at a place other than a hospital, the authorisation of the removal of tissue from the body of the deceased person can occur, for certain purposes, if the deceased person had, during their lifetime, provided written consent for such a removal and that consent had not been revoked.

3. [19]

   Section 24(3) provides that, when the body of a deceased person is at a place other than a hospital, the “senior available next of kin” of the deceased may, by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue for certain purposes. The term “senior available next of kin” is relevantly defined by s 4(1) of the HT Act to mean, in relation to a deceased person other than a child, “a person who was a spouse of the deceased person immediately before the deceased person’s death”.

Assisted Reproductive Technology Act

1. [20]

   The following definitions are, relevantly, set out in s 4(1) of the ART Act.

2. [21]

   Terms relating to “gamete” are defined as follows:

3. [22]

   Terms relating to “assisted reproductive technology” are defined as follows:

4. [23]

   The definition of “donated gamete” is set out in s 4B(1). It is extracted below:

5. [24]

   Genea is a registered “ART provider” within the meaning of s 4(1) of the ART Act. Section 9 of the ART Act provides that the Secretary is to keep a register of all registered ART providers and to cause the contents of the register to be made available on the Ministry of Health’s website.

6. [25]

   Section 23 of the ART Act addresses the provision of assisted reproductive technology treatment to a person using gametes from a gamete provider who is deceased. The provision requires that, for such treatment to be provided, the gamete provider must have consented to the use of the gametes after his or her death.

7. [26]

   Section 23 is extracted in full below:

8. [27]

   Sections 18, 19 and 20 of the ART Act address the use of gametes generally. Those provisions appear below:

9. [28]

   Section 17 of the ART Act addresses the giving, modifying and revoking of consent by the gamete provider. The relevant subsections are subss (1) and (2), which deal with giving consent, and confirm that the consent must be in the form of a written notice. They are extracted below:

10. [29]

    The ART Act does not address situations in which the deceased person did not provide consent in the form required by s 17(1).

11. [30]

    The interpretation of s 17 (and the balance of Pt 2 Div 3 of the ART Act) is informed by s 16, which provides:

12. [31]

    Section 25 of the ART Act addresses the storage of gametes or embryos. Section 25(1) provides as follows:

13. [32]

    Sections 21 and 22 of the ART Act address the supply and export of gametes. They are extracted below:

EXISTING CASE LAW

1. [33]

   The earlier aspects of these proceedings raised issues similar to those addressed in several previous decisions of this Court including: Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 (“Chapman”) (per Fagan J); In the matter of an Application by Vernon [2020] NSWSC 608 (“Vernon”) (per Rothman J); Noone v Genea [2020] NSWSC 118 (“Noone No 1”) (per Beech-Jones J); and Noone v Genea Limited [2020] NSWSC 1860 (“Noone No 2”) (per Beech-Jones J). As the proceedings have unfolded, however, the immediate relevant authority was Noone No 2.

2. [34]

   In making the initial orders permitting extraction in Noone No 1, Beech-Jones J distinguished Chapman on the basis that the plaintiff, as senior available next of kin, provided the relevant consent under s 24 of the HT Act: Noone No 1 at [4]-[12]. The orders facilitated removal of gametes from the deceased.

3. [35]

   In making subsequent orders on a notice of motion seeking declarations in relation to the use of the gametes in Noone No 2, Beech-Jones J explained that, although in making orders in Noone No 1 he was able to make a finding referable to s 24(4) of the HT Act, that “is not the same as the written consent required for the posthumous use of gametes by the ART Act”: Noone No 2 at [22]. His Honour held it was clear that there was no written consent satisfying s 17 of the ART Act from the deceased consenting to the use of his gametes after his death for the purposes of s 23(a) of the ART Act: Noone No 2 at [36]. Having considered the orders made in Noone No 1, in light of both Chapman and Vernon (discussed below), his Honour found (at [47]):

4. [36]

   In Noone No 2, both the plaintiff and the Attorney General “accepted that declaratory relief supporting [the plaintiff’s] present entitlement to the tissue sample and her ability to transport it to the ACT was supported by so much of the reasoning in Chapman that concerned the fate of the sample after it was removed from the plaintiff’s husband’s body and by Edwards”: at [51], citing Re Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478 (“Edwards”).

5. [37]

   In those circumstances, whilst Beech-Jones J explained that there was “considerable force” in the Attorney General’s submission that the construction of “gamete provider” adopted by Rothman J in Vernon should not be adopted, it was not necessary to resolve that issue. In particular, his Honour found it unnecessary to resolve the disagreement between Vernon and Chapman as to when the plaintiff obtained property in the tissue sample, because the plaintiff had certainly acquired it by the time of the hearing. Thus, it was concluded that the balance of the “reasoning in Chapman and Edwards… confirms that neither Ms Noone nor Genea [would] be in breach of the ART Act if they arrange the safe transport of the tissue sample to the ACT”: Noone No 2 at [51]. His Honour also noted that “[t]he fate of the tissue sample in the ACT is a matter for the laws of that polity”.

6. [38]

   The form of declarations ultimately made in Noone No 2 was as follows (at [4]):

CONSIDERATION

1. [39]

   It would appear that the deceased in this matter did not provide written consent for the removal of his gametes after his death pursuant to s 17 of the ART Act to enable storage of gametes extracted after his death. However, the Court has found that the plaintiff validly authorised the extraction of gametes from the body of the deceased pursuant to s 24(3) of the HT Act: Adams No 1 at [48]. The Court further ordered that the sperm be stored pending further order at Genea in Sydney. No application was made to set aside those orders. They are valid unless and until set aside.

2. [40]

   There is some conflict in the case law as to the legal basis for the extraction of gametes from a deceased male body in New South Wales. The findings by Beech-Jones J about the construction of the HT Act in Noone No 2 (at [45]-[46]) and by the Court as presently constituted in Adams No 1 (at [35], [44]-[46]) are potentially inconsistent with Fagan J’s reasoning in Chapman that there is no legal basis for the extraction of gametes from a deceased male body in New South Wales (see Chapman at [58]). However, in Noone No 2, Beech-Jones J regarded Fagan J’s comments as obiter (at [45]). His Honour observed:

3. [41]

   The foundation for the orders made by Beech-Jones J in Noone No 2 was, in my view, the “exception” to the consent provisions of Pt 2 Div 3 of the ART Act that was applied in Chapman, itself following Edwards. I have followed his Honour’s judgment, in that respect, in this matter; thus, establishing a proper basis for consent orders before the Court.

4. [42]

   I note that, in Chapman, a transfer of possession of the gametes to a person who is not an ART provider may be characterised as a “release, relinquishment or surrender”, rather than a “supply” under s 21 of the ART Act, and transport interstate may not necessarily constitute “export” so as to contravene s 22 of the ART Act (see Chapman at [78]-[85]).

5. [43]

   As Ms J Davidson of counsel for the Attorney General submitted, the grant of declaratory relief is discretionary. In Cresswell v Attorney General (Qld) [2018] QSC 142, Brown J set out several discretionary considerations that may be presently relevant to the Court’s discretion:

   1. (1)

      whether the sperm can be legally used in assisted reproductive technology treatment;

   2. (2)

      any consent, whether express or inferred, given by the deceased;

   3. (3)

      the likelihood that the sperm of the deceased, if extracted, would be used for the impregnation of his partner;

   4. (4)

      the best interests of any child that may be conceived as a result of the use of the sperm;

   5. (5)

      whether there are any generally held community standards in respect of the situation proposed and whether the proposed orders do or do not accord with such standards; and

   6. (6)

      whether the applicant’s desire is a result of careful or rational deliberation as opposed to an emotional response to grief.

6. [44]

   None of those factors, when applied in the current matter, pointed against the exercise of a discretion to grant the consent orders in the present case.

7. [45]

   Finally, I accept the Attorney General’s submission that, in future, matters of this type should require the express written consent for the removal of gametes by either the deceased or the senior available next of kin to be obtained. The desirability of that formal written instrument providing express authorisation was recognised in Adams No 1 at [39], albeit in a different context.

8. [46]

   The Court confirms its orders of 15 March 2021.