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Home | Blog | Consent to a medical procedures to collect sperm

Ping Yuan v Da Yong Chen [2015] NSWSC 932 NSW

An urgent application was recently made to the NSW Supreme Court seeking an order to allow for the collection of sperm from an unconscious patient who was only expected to live for a few hours after he suffered the rupture of a major blood vessel and had not regained consciousness.

It was submitted that moments prior to the patient losing consciousness he had informed his wife that he wanted to have another child with her. The patient’s wife therefore requested that the sperm be extracted from her husband and stored in the hospital facilities for later insemination. Before the procedure could be conducted however, the hospital sought assurance that the doctors had lawful consent to perform the procedure.

The patient’s wife therefore sought an order from the Supreme Court that she was the ‘person responsible’ under the Guardianship Act 1987 and had the power to consent to the procedure. Justice Fagan initially accepted that the wife had authority under the Guardianship Act to consent to this procedure and allowed the sperm to be extracted from the patient. The judge however soon became concerned that the Guardianship Act may in fact limit the circumstances that a spouse can provide consent for medical treatment and determined that the matter required further consideration in collaboration with persons such as the Attorney-General and/or Minister for Health. He also ordered that until further orders were made, the wife is not to seek to use or to deal with her husband’s semen and that she is not to remove it from the control of the RPAH Fertility Clinic, where it is stored.

The court will now consider a number of issues including whether the sperm can be inseminated into the patient’s wife, whether the patient had consented to this course of action and whether the wife had power to consent on his behalf.

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