Written Consent depends on the Jurisdiction

Joel and Yoshiko Chapman met in 2014 and lived together from early 2016; during this time they expressed to each other their wish to have children together. They married in late 2017.

Prior to their marriage, they took out private health insurance as a couple in order to be covered for pregnancy and childbirth. Following their marriage, they sought medical advice about Yoshiko’s ability to fall pregnant and attempted to start a family.

On 23 March 2018 Mr Chapman underwent a surgical procedure. On 29 March 2018 Joel suffered a massive stroke following surgery, he was pronounced dead at 10:00 am; at 4:00 pm, following the urgent application for a Court order by Yoshiko samples of Joel’s sperm, were extracted and cryopreserved at the Royal Hospital for Women (“RHW”) in Randwick.

Notwithstanding the common law provision regarding treating patients without permission, the Human Tissue Act 1983 (NSW) (“the Act”) prohibits subject to certain exceptions, the removal of sperm from an unconscious patient without consent or court order.

Yoshiko sought a declaration that she is entitled to possession of the sperm. She also asks that interlocutory orders of the Court, by which removal of the sperm from storage and use of it were restrained be discharged:

“so that I can safely store it until a time that I may decide to use it”.

The Assisted Reproductive Technology Act 2007 (NSW) (‘ART”) prohibits storage, export, possession and usage of sperm without the sperm donors written consent.

Joel had not provided any such written consent prior to his operation on 23 March 2018 because there was no occasion for it. Following the operation, he was unable to give written consent.

The South Eastern Sydney Local Health District (“SESLHD”) administers RHW and is a registered provider of assisted reproductive technology services as defined in ART. Importantly without Joel’s consent, SESLHD can only continue to store the material under the original Court orders and the sperm cannot be used for IVF in New South Wales.

In discussing the Court’s parens patriae jurisdiction (power of the Court to act as the parent of any individual who is in need of protection.) It was found that the surgical extraction of sperm from an unconscious and moribund patient was not for their benefit, welfare or protection.

The Firmly established principles are against the Court authorising an invasive procedure for the sole purpose of benefiting another. In the present circumstances where the patient is beyond being benefited in any sense by the extraction of his sperm; it could only be for the benefit of another party, the surviving spouse.

The Court affirmed that the steps taken to preserve and store the sperm after removal from the body following a valid court order sufficient work and skill had been lawfully applied to constitute it the property of the widow at whose behest the work and skill had been applied. Therefore she is entitled to possession of the sperm.

However given the lack of written consent Yoshiko must arrange transportation of the sperm to a storage facility in a jurisdiction where written consent is not a mandatory requirement; either Tasmania, the Australian Capital Territory or the Northern Territory.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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