A woman in New South Wales, Australia, has been given permission to extract sperm from her unconscious, dying husband.
Da Yong Chen, a father of one, was admitted to hospital with severe chest pains, having ruptured a blood vessel. He did not regain consciousness after surgery, during which time his wife, Ping Yuan, made an urgent application to court to extract his sperm.
She told her lawyers that before he lost consciousness, Chen had told her that he wanted to have one more child with her. However, as this did not amount to consent to the extraction procedure, the wife sought a declaration that the doctors could lawfully extract the sperm upon the consent of a 'person responsible' for Chen under state law, which in this case was Yuan.
The issue for the court was whether the meaning of 'treatment' under the State's Guardianship Act covered the extraction procedure. In making a declaration in favour of the wife, the judge considered that it did — noting in his reasons for the decision, which were given at a later date, that this may not have been the intention of parliament.
'The urgency of collecting the sperm, if it was to be done, was considerable,' said Mr Justice Fagan in the Supreme Court of New South Wales, who heard the application over the telephone and by email at the time. 'I was informed that posthumous extraction would be possible but with diminished prospects of viability, in direct relationship to the length of delay after death.'
However, before Yuan can use the sperm a further hearing must take place to determine if Chen had given consent to its use after death. The wife is also not able to remove the sperm from the clinic where it is currently stored.
Chen died shortly after the procedure was carried out.