Whether extraction of sperm from a patient unable to give
consent constitutes medical treatment under the Guardianship
Act 1987 (NSW) (the Act) (equivalent to the
Guardianship and Administration Act 1990 in Western
Whether Mr Chen, the deceased husband of Ms Yuan, will be found
to have consented to the use of his sperm after his death in future
Ping Yuan v Da Yong Chen concerns Da Yong Chen who
suddenly fell ill and was diagnosed with the rupture of a major
blood vessel. Just prior to being admitted for emergency surgery,
Mr Chen allegedly told his wife, Ping Yuan, that he wanted to have
another child with her. Unfortunately, Mr Chen's condition
deteriorated and he did not regain consciousness after the surgery.
Mr Chen's treating doctor considered Mr Chen had mere hours to
live. Ms Yuan requested the hospital's fertility clinic extract
Mr Chen's sperm for storage and insemination at a later date.
The fertility clinic advised Ms Yuan it would do so on the
condition that it received lawful and effective consent. Since Mr
Chen was unable to give consent himself, Ms Yuan made an urgent
ex-parte application seeking a declaration that Ms Yuan was able to
consent on Mr Chen's behalf to the extraction and storage of
According to section 34, Part 5 of the Act applies to patients
who are "incapable of giving consent to the carrying out of
medical or dental treatment". Pursuant to section 36 of the
Act, where that treatment is "minor", then "the
person responsible for the patient" may give the consent on
his or her behalf.
The court had no difficulty in concluding that Ms Yuan was
"the person responsible" for Mr Chen and that the
extraction of sperm was "minor" treatment. The issue was
whether the procedure constituted "treatment" under the
Act. Since the Act does not define the word, the court looked to
its ordinary definition, that being, "the application of
medicines, surgery ... etc to a patient to cure a disease or
condition."1 The court conceded that the word
"treatment" includes medical procedures undertaken to
assist fertility or procure pregnancy. Given the urgent
circumstances, the court was unable to resolve the issue but
nevertheless granted Ms Yuan the declaration in the terms
The fertility clinic was advised of the court's decision and
they carried out the extraction. Mr Chen died 45 minutes later.
Upon Mr Chen's death, the fertility clinic and hospital were
presented with a new problem. That is, pursuant to section 23(a) of
the Assisted Reproductive Technology Act 2007 (NSW)
(equivalent to the Human Reproductive Technology Act 1991
in Western Australia), the fertility clinic could not inseminate Ms
Yuan with Mr Chen's sperm unless he consented to its use after
his death. The court found that Ms Yuan would have been able to
provide this consent before Mr Chen died and in accordance with the
declaration granted. The proceedings were listed for directions on
14 July 2015 and Ms Yuan was restrained from using the sperm until
further order of the court.
The present case is a perfect example of how hospitals face many
obstacles in obtaining consent from patients. Here the hospital was
able to obtain consent from Ms Yuan to extract and store Mr
Chen's sperm. However, when he died shortly thereafter, the
hospital could not inseminate Ms Yuan because they required Mr
Chen's consent to use his sperm after his death. The present
case evidences the importance for medical practitioners to maintain
effective communication with a patients' family, particularly
when there are consent issues. Whilst medical practitioners may be
expected to foresee the various consent issues that may arise and
plan ahead, this is not always possible or practical.
1 Macquarie Complete Australian
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