Supreme Court Authorises Posthumous Sperm Retrieval for Widow

In an urgent application, the Supreme Court of New South Wales authorised posthumous sperm retrieval for the claimant, who was the senior available next of kin of the deceased. The court noted that there was no opposition from relevant authorities and that the procedure was necessary for the claimant's desire to have a child from the deceased.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2018] NSWSC 153 Hearing dates: 16 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Common Law Before: Johnson J Decision: Orders made authorising posthumous sperm retrieval from the body of [NAME] (see [11]). Catchwords: CIVIL PROCEDURE - urgent application by wife for sperm retrieval from deceased body of husband - order made authorising extraction and retention of sample pending further order of the Court Legislation Cited: Supreme Court Act 1970 Cases Cited: Edwards; Re [NAME] (2011) 81 NSWLR 198; [2011] NSWSC Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Re Floyd [2011] QSC 218 Texts Cited: --- Category: Procedural and other rulings Parties: [NAME] (Plaintiff) [NAME] (Defendant) Representation: Counsel: [redacted]

Solicitors: [redacted] File Number(s): 2018/55022 Publication restriction: ---

Judgment 1. JOHNSON J: This is an ex parte application by the Plaintiff, [NAME], in proceedings where the [NAME] is named as the Defendant.

2. The matter has come urgently before me as Duty Judge after 6.00 pm today. I have granted leave for a Summons to be filed in Court together with an affidavit of [NAME] sworn 16 February 2018.

3. The Plaintiff is the wife of [NAME] who was shot dead yesterday. The body of Mr [NAME] is presently at the City Morgue in the custody of the [NAME] as part of a murder investigation. The Plaintiff was married to Mr [NAME] and is the senior available next of kin with respect to him. [NAME] is informed by the Plaintiff that she desired, and still desires, to have a child from the deceased in the near future which would need to be undertaken by way of in vitro fertilisation. For this purpose, she requests that a post-mortem sperm retrieval procedure be performed with respect to him.

4. The Plaintiff has retained [NAME], urologist, who is willing to perform the necessary extraction procedure. The affidavit reveals that Dr [NAME] has indicated that any post-mortem sperm retrieval procedure should be undertaken as soon as possible after death, and that the maximum time limit for the procedure to be successful is within 36 hours from the time of death. 5. [NAME] died at 5.00 pm yesterday, just over 24 hours ago.

6. The solicitor for the Plaintiff has been in touch with [NAME] from the New South Wales Coroner's Court indicating that there was to be a request for such a procedure to be undertaken. The [NAME] has indicated that there would be no objection to the procedure, however it was indicated that an order of a Court would be required for the procedure to be undertaken.

7. Courts have made orders in the past authorising posthumous sperm retrieval. In Edwards; Re [NAME] (2011) 81 NSWLR 198; [2011] NSWSC 478, RA Hulme J (at 201 [11]-[15]) referred to an urgent order made by Simpson J (as her Honour then was) as Duty Judge in August 2010 authorising post-mortem sperm retrieval from a recently deceased man. Similarly, Atkinson J in Re Floyd [2011] QSC 218 made an order to facilitate this process.

8. The Summons as originally drawn sought orders in the nature of mandamus under s.65(1) Supreme Court Act 1970 directed to the [NAME]. In discussions with Mr [NAME] of counsel, who appears for the Plaintiff, I indicated that I did not think relief of that type was necessary because the [NAME] was indicating a willingness to facilitate the taking of the sample if a Court order was made. It is not the position that the [NAME] is refusing to fulfil a duty in which the Plaintiff is personally interested: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 8, 28-29. What is required is an order of a Court which, as I understand it, the [NAME] will then proceed to implement. There is no opposition by the [NAME] to the application and the investigating police do not oppose it either. Clearly what needs to happen is that any sampling be undertaken in appropriately controlled conditions with the investigating police being present to ensure, for their purposes, that there is no step taken which may in some way compromise their investigation.

9. I will make orders in a moment to give effect to what is sought. I have already granted leave for the Summons and affidavit of [NAME] to be filed in Court and that Summons is returnable instanter and I have proceeded with the hearing of it.

10. I will make orders to facilitate the taking of the sample. I will also list the proceedings to come before me at 9.15 am on 5 March 2018 so that, if there be any further order that is sought, there can be some appropriate proceeding on foot to facilitate that process.

11. I have already made Orders 1 and 2 in accordance with the Summons. I make the following further orders: 1. [ADDRESS] authorises post-mortem sperm retrieval by way of the taking of a portion of the epididymis (or such tissue as is necessary) of the deceased [NAME] by [NAME].

2. For this purpose, the [NAME] is to make available the body of the deceased [NAME] for the performance of posthumous sperm retrieval. [ADDRESS] notes and authorises that investigating police will be in attendance when the sample is taken. 3. [ADDRESS] authorises the removal of the sample obtained into the custody of [NAME] or [NAME], paralegal, of [NAME] for delivery to an appropriate storage facility. 4. [ADDRESS] authorises the storage of the sample obtained pending a future application to the Supreme Court for the use of that sample.

5. The proceedings are stood over for directions at 9.15 am on 5 March 2018 before me.

6. I grant liberty to apply on 24 hours' notice or if there is an urgent need to make application, an application can be made to me as Duty Judge on the weekend of 16-18 February 2018.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2018