Upon being advised on 27 March 2018 that her husband would likely not survive, Mrs Chapman urgently applied to the Common Law duty judge for orders allowing surgical removal and storage of a sperm sample, which was dealt with ex parte and orders made the following evening.

The extraction procedure was performed pursuant to orders on 29 March after Mr Chapman had died, and the duty judge directed that the extracted sperm sample be stored in anticipation of a further order of the court.

In this instance, the Supreme Court was tasked with resolving two issues: one, whether the plaintiff, Mrs Chapman, was entitled to possession of the sperm removed, and two, whether her application should be refused in light of infringements of the Assisted Reproductive Technology Act 2007 (NSW), given that the deceased “had not during his life signed written consent” for his sperm to be removed.

The court determined that Mrs Chapman was entitled to possession of the sample, with the hospital having been entitled to carry out the procedure in accordance with the original orders.

Although the act prohibits “the supply, use, exportation or storage of sperm samples by assisted reproductive technology providers in the absence of the donor’s written consent”, the court held that granting the widow possession of the sample would not be a supply, but a release of property to which she was already entitled.

Further, “by providing the preserved sperm to couriers acting as Mrs Chapman’s agents for transport to another jurisdiction, neither the hospital nor the plaintiff would contravene statutory prohibitions upon storage, use or exportation of such material”.

In noting that decisions such as this were usually made in circumstances of extreme urgency, and without assistance of counsel, the court recommended that parliament consider enacting “a clear rule for the guidance of hospitals, medical practitioners and patients’ relatives as to whether or not extraction of sperm from an unconscious moribund male patient or from a deceased male is permitted without written consent signed by him whilst of full capacity”.

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It was further suggested that if parliament enacted legislation permitting such extraction, “precise preconditions should be specified to avoid the need for urgent court applications in the crisis conditions of imminent or recent death”.

The decision follows a recent landmark ruling by the Supreme Court of Queensland, which held that a woman was entitled to possession of sperm extracted from her recently-deceased partner who had committed suicide.

That particular decision was criticised by numerous Australian family law practitioners.