AB (a pseudonym) v Alfred Health [2025] VSC 551 (Link to AUSTLII).
The Plaintiff (‘AB’) made an urgent application to the Practice Court of the Supreme Court of Victoria seeking, inter alia, an order that the Defendant (‘Alfred Health’), by a designated officer, be authorised to remove spermatozoa and associated tissue from the body of the deceased, referred to by the pseudonym ‘YZ’. He had died by cardiac arrest following pulmonary embolism.
The Plaintiff sought this order so to preserve the tissue by the Royal Women’s Hospital and its authorised representatives, until further relief, if any, is sought by her.
Alfred Health did not oppose the Court making a declaration of AB as senior available next of kin for the deceased, but wanted clarification that there was no legal impediment for it to proceed to make the decision under s 26 of the Human Tissue Act.
The court concluded at [32]:
Due to the nature of the urgent hearing, and for the limited purposes of permitting the retrieval of human tissue pursuant to s 26 of the Human Tissue Act, I am persuaded that the declarations sought are appropriate. The declaration of the Plaintiff as ‘senior available next of kin’ is made in these circumstances and for this limited purpose. The orders preserve the opportunity for AB to make an application or bring proceedings which seek permission to use the spermatozoa. If she follows that course, other interested parties would have an opportunity to object or support such an application. This decision ensures that AB has the opportunity to be properly advised, but also to grieve what has been a momentous and tragic event for not only her but the deceased’s family. The declaration that the Defendant is empowered to make the decision foreshadowed under s 26(1) of the Human Tissue Act does not direct it to do so. That is a matter for decision by the Defendant but indicates the Courts satisfaction that there is no impediment to the Defendant doing so.
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