AB (a pseudonym) v Alfred Health [2025] VSC 551
Introduction
On 13 June 2025, the Supreme Court of Victoria (the Court) granted an urgent application authorising Alfred Health (the Defendant) to remove sperm and associated tissue from the body of a deceased under the Human Tissue Act 1982 (Vic) (‘the Human Tissue Act’).
The Background and Key Facts of the Case
On 10 June 2025, the deceased passed away in the Intensive Care Unit at the Alfred Hospital, operated by the Defendant, after suffering an out of hospital cardiac arrest. After the death, AB (a pseudonym) (AB) the partner of the deceased, contacted the Defendant seeking urgent retrieval of the deceased’s sperm to preserve the possibility of using it to have a child.
The Defendant’s position was that discretion to authorise the retrieval of sperm would be exercised only when there was evidence the deceased had consented in writing to such use of the sperm after death, or where such consent does not exist, the Court has authorised the removal or directed the Defendant to authorise the removal.
In this case, the deceased had not provided such consent, meaning the Defendant refused to conduct or allow the retrieval procedure without an order from the Court under section 26 of the Human Tissue Act authorising or directing the removal.
Section 26 of the Human Tissue Act provides that a designated officer of a hospital (i.e. a registered medical practitioner appointed as the designated officer under the Human Tissue Act) can authorise the removal of tissue from a deceased person for ‘medical purposes’ if the deceased person had explicitly consented (written or oral), or the ‘senior available next of kin’ provides consent on the deceased persons’ behalf.
Submissions made by the parties
AB’s counsel instructed that the application for an order to retrieve the sperm and associated tissue was only to preserve the possibility of AB making a future application to use it given the time sensitive nature of the procedure.
The question brought by the Defendant was whether AB could be considered a ‘senior available next of kin’ for the deceased and therefore able to provide consent to the retrieval. The Defendant did not oppose this declaration, but rather, wanted clarification there was no legal impediment for it to proceed to make a decision under section 26 of the Human Tissue Act.
The Court’s Considerations
It was non-contentious that the use of sperm for artificial insemination is considered use for ‘medical purposes’ under section 26 of the Human Tissue Act and that the deceased had not provided consent prior to his death for such use of his sperm.
Therefore, the primary questions for the Court were:
- whether AB could be the deceased’s ‘senior available next of kin’ to be able to authorise the removal of the sperm; and
- that there was no other legal impediment to the Defendant.
‘Senior available next of kin’ is defined in section 3 of the Human Tissue Act as a person who is a ‘domestic partner’ of the deceased person. To determine this, all circumstances of the relationships are to be considered, including matters in section 35(2) of the Relationships Act 2008 (Vic) that may be relevant.
The matters presented to the Court to determine the nature of the relationship included that the deceased and AB were having sexual intercourse without contraception, AB had seen a GP to undergo fertility testing and was tracking ovulation periods, there had been discussions of living together, and AB provided a sworn affidavit attesting to the personal and financial support of the relationship.
The Court found those matters to have the “hallmarks of a loving and caring domestic relationship” and did not find the short length of their relationship or the fact they did not cohabitate as negating factors.
Case Outcome
With the time constraints of the proceeding and the limited purposes of authorising the retrieval, the Court was satisfied the orders sought were appropriate. AB was considered to be the deceased’s domestic partner for the purposes of the application, and therefore a ‘senior available next of kin’ under section 26 of the Human Tissue Act. Having been satisfied that AB was the ‘senior available next of kin’ and had consented to the removal of sperm, the Court declared that the Defendant was authorised to remove the sperm and associated tissue from the body of the deceased for the purposes of preservation until a further order for use of the sperm, if made.
The Court was clear to set out the use of the sperm was not to be determined by this proceeding, noting that the consent of the deceased during their lifetime to the use of their gametes after their death is rare, and must have been explicitly contemplated and explicitly given. Consent to other procedures or uses, such as IVF, is not sufficient.
The Court’s decision gave the Defendant the power to act under section 26 of the Human Tissue Act and the Court was satisfied there was no impediment to the Defendant for it to proceed to make a decision under that section. However, the Court did not direct the Defendant to so act.
Compliance Impact
This case demonstrates the importance of identifying the ‘senior available next of kin’ in post-mortem tissue-retrieval cases and of consent requirements set out in section 26 of the Human Tissue Act.
Organisations should also note the decision of the Court to refrain from giving direct instructions to the Defendant to act under section 26 of the Human Tissue Act, despite authorising it to do so. This meant the Defendant in this case was still left the decision-making power and discretion to act appropriately.
