Ping Yuan v Da Yong Chen [2015] NSWSC 932 concerned an urgent ex parte application by a woman to remove sperm from her husband,  who was then lying unconscious in a critical condition at Royal Prince Alfred Hospital Sydney. The court was required to determine whether removal of sperm from moribund unconscious patient constituted medical treatment and the capacity of the patient’s wife to consent.

The court (at [19]) had concluded on the initial urgent application that the proposed procedure did fall within the meaning of treatment for the purposes of s 40 Guardianship Act (NSW) and that it was appropriate to declare that the medical practitioners of the RPAH Fertility Clinic could lawfully act upon the consent of the Plaintiff, as the person responsible for Mr Chen, with respect to carrying out the extraction and storage of semen. A declaration was made accordingly and communicated to the medical practitioners concerned.

However the outcome of the matter now appears unclear as at [20] – [27] Fagan J 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.

Further, I acknowledge that the observations of O’Keefe J in MAW v Western Sydney Area Health Service [2000] NSWSC 358; (1999) 49 NSWLR 231 at [51]-[54] are against the interpretation which I placed upon s 40 and by reference to which I supported the declaration referred to above. I was not aware of his Honour’s decision when the Plaintiff’s application had to be determined urgently on 7 July 2015.

… In due course the Court may have to decide whether orders should be made by reference to the Assisted Reproductive Technology Act, regarding the use of such sperm as may have been obtained from Mr Chen. By force of s 19 of that Act the RPAH Fertility Clinic would not be able to provide treatment in the nature of insemination of the Plaintiff “except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”.

By affidavit of the Plaintiff affirmed 13 July 2015 it now appears that the extraction was carried out shortly after the Court’s declaration (referred to at [19]) had been communicated to RPAH. Mr Chen died another 45 minutes later. Mr Chen was a “gamete provider” as the term is defined in s 4 of the Act, albeit that his sperm is not within the definition of “donated gamete” because it was not provided “for use by a person other than…. the gamete provider’s spouse”. For the purposes of s 19 there is question whether Mr Chen’s consent can be established. As at 7 July 2015 this had only been the subject of hearsay evidence of a tangential conversation (refer [4] above). A second affidavit of the Plaintiff, also affirmed 13 July 2015, has expanded upon the terms of her conversation with Mr Chen shortly before he was administered the general anaesthetic on 6 July 2015.

As Mr Chen has since died the RPAH Fertility Clinic would have to be satisfied that he had consented, specifically, “to the use of the gamete after his… death” (s 23(a), Assisted Reproduction Technology Act) before using the sperm. In order to be able to continue to store Mr Chen’s sperm, the RPAH Fertility Clinic requires consent of “the gamete provider”, which the clinic would have been able to obtain from the Plaintiff before Mr Chen died, in reliance upon the declaration which I made on 7 July 2015. That consent is required to be for storage for a specified period: s 25(2).

The implications of these matters may need to be further considered by the Court. With a view to there being an appropriate contradictor in the further conduct of the proceedings I have now directed, on 14 July 2014, that a copy of the Summons, the affidavits and these reasons be provided to the Attorney-General and to the Director-General of the Department of Health. The Minister for Health has the administration of the Assisted Reproductive Technology Act. The notified officers are to be informed of the next date when the matter will be before the Court so that they may make application to be joined, if so advised.

The directions made today also require that the Proper Officer of the RPAH Fertility Clinic be given formal notice of the proceedings and a copy of these reasons. The Plaintiff’s counsel informed the Court on 14 July 2014 that the Plaintiff intended, in any event, to join as a defendant the entity that operates the Clinic.

Lastly, on the return of the Summons before the Court on 14 July 2015 it has been ordered that until further order the Plaintiff is not to seek to use or to deal with the semen of Mr Chen and that she is not to remove it from the control of the RPAH Fertility Clinic. I did not consider it necessary to make any order against the Clinic itself as its handling and disposition of the stored semen is in any event closely controlled by the Assisted Reproductive Technology Act.