A Sydney woman is fighting for access to her dead husband's sperm so she can fulfill his last wish

Christopher Furlong/Getty Images

A 45-year-old man admitted to Sydney’s Royal Prince Alfred Hospital last week with severe chest pains told his wife, just before he went under anaesthetic, that he wanted to have a second child with her.

Da Yong Chen had been diagnosed with a rupture of a major blood vessel and the condition was acute and life-threatening.

Unfortunately, the surgery didn’t go well. As Chen’s condition deteriorated, his wife, Ping Yuan, tried to get medical staff to extract sperm from her unconscious husband.

The doctors wanted the legal situation clear before proceeding. Ping Yuan had her solicitor to make an application by phone and email to the Supreme Court to allow the sperm to be collected.

After the Court gave consent, a specialist at the fertility clinic, Dr Ying Li, extracted the sperm.

Chen, who didn’t regain consciousness after surgery, died about 45 minutes later on July 7.

Now the NSW Supreme court is working out what happens next. Does the wife own the sperm or not? Can she use it to have a child?

When Justice Desmond Fagan received the application, he was told that it was unlikely Chen would recover consciousness to give consent himself. The judge considered that what Chen said to his wife about wanting more children did not amount to consent to take the sperm.

“The urgency of collecting the sperm, if it was to be done, was considerable,” the judge said. “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.”

Several laws could apply in part or full to the case, including the Assisted Reproductive Technology Act 2007 (NSW), Human Tissue Act 1983 (NSW) and the Guardianship Act.

For the RPAH Fertility Clinic to go ahead and consent to the widow’s wishes, it would have to be satisfied that her late husband specifically consented to use his sperm after death.

In the meantime, Justice Fagan has directed that the Attorney-General and Director-General of the Department of Health be provided with all the background to the case. The judge believes they may want to be represented in court to add their views on what happens next.

He also ordered the wife not remove the semen from the RPAH Fertility Clinic.

A date for the next hearing hasn’t been set.

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