In the recent Queensland decision of Re Creswell, Her Honour Justice Brown granted an application made on behalf of Ayla Creswell, the de facto partner of the deceased, to use the deceased’s sperm to conceive a baby.
In that case, Ms Creswell and Mr Davies were in a relationship for approximately 3 years. They had lived together, were saving for a house and had discussed their desire to have children together. Mr Davies died suddenly on 23 August 2016. Ms Creswell’s dreams were crushed.
With the support of Mr Davies family, Ms Creswell made an application to the Supreme Court of Queensland for the removal of Mr Davies sperm. This application was granted one day after Mr Davies’ death. His sperm was removed at the Toowoomba Hospital by medical staff and preserved at the Queensland Facility Group laboratory.
Subsequent to the application for removal of Mr Davies sperm, Ms Creswell applied to the Supreme Court of Queensland seeking declarations that she be entitled to possession and use of Mr Davies sperm in assisted reproductive treatment. The Respondent to the application, the Attorney-General for the State of Queensland, neither opposed nor consented to Ms Creswell’s application.
In the absence of Queensland legislation dealing with the use of removed sperm where a donor is deceased, her Honour Justice Brown in her decision analyses the law of “property” in Australia and England, carefully weighed discretionary factors and ultimately found, inter alia, that Mr Davies sperm was capable of constituting property and Ms Creswell was entitled to possession and use of it. Her Honour noted:-
“I am satisfied on the evidence that any child which may be conceived as a result of Joshua Davies’ sperm will be loved, cared for and able to be financially and emotionally supported, not only by Ms Creswell but by the extended family.”
There is no statutory framework in Queensland dealing with the use of removed sperm where a person is deceased. The decision of Re Creswell is the first Queensland decision allowing the use of sperm taken from a deceased person.
The four issues for the Courts determination in Ms Creswell’s application for possession and use of Mr Davies sperm were:-
- what is the legal basis for the removal order made on 24 August 2016 and its present status;
- whether the removed sperm is property capable of being possessed;
- whether Ms Creswell is entitled to possession and use of the sperm removed from Mr Davies; and
- If so, is her entitlement affected by discretionary factors.
Ultimately, her Honour Justice Brown found:-
- The removal of sperm from a deceased person for use in assisted reproductive treatment was for a “medical purpose” pursuant to section 22 of the Transplant and Anatomy Act 1979 (Qld) (“TAA”). – B the TAA provides a regime for the removal of sperm of a deceased which does not require parties to come before the Court for removal of the sperm. However, section 22 of the TAA requires that the deceased had not expressed an objection to the removal after death of tissue (sperm) from his/her body, the next of kin of the deceased consents to the removal of tissue (sperm) from his/her body and the removal is authorised by the designated officer (a medical superintendent of a hospital);
- Once the sperm was removed from Mr Davies body, it was property capable of permanent possession given that work and skill was exercised in relation to its removal, separation and preservation;
- Ms Creswell was entitled to possession of Mr Davies sperm as the medical and laboratory staff who exercised the work and skill to extract and preserve the sperm were acting as her agents and Ms Creswell was their principal; and
- That discretionary factors, including the best interests of the child, whether Ms Creswell’s decision was a rational one and community standards, weighed in favour of making the declarations sought by Ms Creswell and the declarations sought were granted.