A NSW Supreme Court judge has notified the Attorney-General and the Department of Health about the case of a Sydney woman who wanted her dying husband’s sperm collected for reproductive purposes. Justice Fagan said in Ping Yuan v Da Yong Chen  NSWSC 932 that “the implications of these matters may need to be further considered by the Court” and directed that the officials from the relevant departments be notified so they can consider applying to be joined as parties in the case.
The case raises several issues about consent under the Assisted Reproductive Technology Act 2007 (NSW) and Part 5 of the Guardianship Act 1987 (NSW). Mr Chen, the husband, was 45 when he was admitted to hospital after the rupture of a major blood vessel. He remained conscious until he received a general anaesthetic for an operation. According to his wife, Ms Yuan, the last thing he said was that he would like to have one more child with her. Mr Chen never regained consciousness following the operation and was in a critical condition. Ms Yuan, who was told he may only have hours to live, made an emergency telephone application to the Supreme Court to collect his sperm.
After the emergency telephone hearing, Justice Fagan made the declaration sought by the plaintiff that the medical practitioners could lawfully undertake the collection:
“It appeared unlikely that Mr Chen would recover consciousness to be able to give consent himself. What he had said to the Plaintiff… did not amount to consent for such a procedure. The urgency of collecting the sperm, if it was to be done, was considerable. I was informed that posthumous extraction would be possible but with diminished prospects of viability, in direct relationship to the length of delay after death.” [at 7]
The collection procedure was successfully carried out before Mr Chen’s death, and the sperm stored in the hospital facilities. However, following a later hearing and preparation of reasons, Justice Fagan noted he had concerns about the conclusion he had come to at the time:
“In the urgent circumstances in which a decision had to be made I was unable to identify authority which would resolve the critical question of whether the proposed procedure should be regarded as falling within the concept of “medical treatment” for the purposes of the Plaintiff giving consent under s.40(1), Guardianship Act.” [at 16]
While initially he had concluded that the procedure would fall within the meaning of the word “treatment”, he then said:
“After further consideration of the Guardianship Act in the course of preparing these reasons, I acknowledge that there are significant indications in ss 32 and 40 of that Act that it may well have been the intention of Parliament to limit the class of “medical treatment” for which a spouse’s consent might be given under s 40. Parliament may have intended to confine spousal consent to cases where “treatment” of a curative nature is proposed – “treatment” directed to remedying or alleviating a “condition” suffered by the incapable patient.” [at 20].
He also noted that his earlier conclusion was not be supported by MAW v Western Sydney Area Health Service  NSWSC 358; (1999) 49 NSWLR 231, which he was not aware of at the time of his initial decision.
Justice Fagan added an order to his initial declaration restraining use of the sperm until the matter had been more fully considered. He also made the decision to notify the Attorney-General and the Department of Health, so that there could be an appropriate contradictor in the proceedings.
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Ping Yuan v Da Yong Chen  NSWSC 932 (14 July 2015)
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