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Ayla Cresswell was the partner of Joshua Davies who died in August 2016. Ms Cresswell brought an application to the Supreme Court the next day, seeking orders for the removal of Mr Davies' sperm and testes for the purpose of being used for artificial insemination by Ms Cresswell.
The Court granted this application pending further application to determine the use of the sperm. The second application considered whether Ms Cresswell was legally entitled to possess and use Mr Davies' sperm for the purposes of reproduction.
Ms Ayla Creswell met the deceased, Mr Joshua Davies in 2013 and the pair entered into a relationship six months after. In January 2016, the pair began to live together. They were saving for a house and discussing plans to get married and start a family. On 23 August 2016, the deceased took his own life. He left no will and had not previously expressed his testamentary intentions.
On 24 August 2016, Ms Cresswell filed an urgent application to the Supreme Court of Queensland seeking orders for the removal of the deceased's sperm for the purpose of reproduction. The Supreme Court heard the application the same day and Justice Burns made an order that the deceased's sperm and testes be removed and provided to an IVF clinic nominated by Ms Cresswell for storage, pending a further application to the Court for its use. This order was executed and the sperm and testes were transported to a Queensland Fertility Group laboratory for freezing. It was subsequently confirmed that the freezing was successful and that there was a reasonable chance of isolating mature sperm from the deceased's body for the purpose of reproduction if required.
Ms Cresswell made an application for a declaration by the Supreme Court that she is entitled to possession and use of the deceased's sperm for the purpose of reproduction. No party appeared in opposition of the orders sought by Ms Cresswell. The Attorney-General appeared as amicus curiae (to assist the Court). The Court considered the following:
The Court considered the application of the Transplantation and Anatomy Act 1979 (Qld) ('the Act'). The orders made on 24 August 2016, for the removal of the deceased's sperm, did not consider this Act. It was therefore necessary for the Court to determine its legality. Section 22 of the Act provides that a tissue (which includes sperm or ova) can be removed from a deceased person's body under certain specific conditions including that the removal has not been objected to by the deceased during their lifetime and that a 'senior available next of kin' has consented to such removal. The section also provides, among other things, that such removal must be for 'other therapeutic purposes or for other medical or scientific purposes'. Section 24 on the other hand provides that in cases where the death of the deceased was one reportable to the Coroner, the consent of the Coroner is required.
Justice Brown found that the requirements of section 22 were substantially met. In doing this, it considered the intention of the deceased to have children with Ms Cresswell and the consent given by his parents. It also found that 'therapeutic purposes' or 'medical purposes' was broad enough to encompass the removal of sperm for the purposes of reproductive treatment through IVF. In considering compliance with section 24, the Court found that the consent of the Coroner had not been obtained. It however considered that the Coroner had not opposed the removal and in fact had given implied consent by a discussion with the relevant medical practitioner.
Her Honour therefore held that the Act was substantially complied with and that if there were any non-compliances with the Act, they were not insurmountable. Section 24 on the other hand, provides that in cases where the death of the deceased was reportable to the Coroner, as was the case with Mr Davies’ death, the consent of the Coroner is required before any tissue can be removed.
Having established that the sperm was lawfully removed from the deceased, Justice Brown considered whether it could be characterised as property capable of being possessed. She held that sperm removed from a deceased person is capable of constituting property, where work and skill has been exercised in relation to its removal, separation and preservation. Otherwise, a sperm could only constitute property where the separation from the body occurred while the donor was living and consented to the removal. It was noted that the sperm of a deceased, not removed while he is living, is not capable of property and does not form part of their estate upon death.
It was noted that in Queensland, no legislation deals with the use of sperm obtained posthumously. However, the Court, having established that the sperm of a deceased person could be characterised as property, found that the person entitled to its possession, was the party who exercised the work and skill to extract and preserve it or the principal for whom they acted. Her Honour then held that Ms Cresswell was 'prima facie' entitled to permanent possession of the sperm as the partner of the deceased because the medical and laboratory staff were acting as her agents in undertaking the work and skill required to obtain the sperm.
The Court considered discretionary factors including what the wishes of the deceased would have been, the best interest of the child and any generally held community standards. It was held that no discretionary factors weighed against the entitlement of Ms Cresswell to the deceased's sperm.
The Court made a declaration that Ms Cresswell was entitled to possession and use of the sperm of the deceased but only for use by her for the purposes of reproduction.
© 2019 MinterEllison
