Recently, the Supreme Court of Queensland considered a landmark case concerning property, parenting and IVF. Particularly, the court was asked whether the Sperm of a deceased man’s partner could be harvested and secondly, whether that sperm could be classed as property capable of assignment to another person after death.
Ayla Creswell, now 25 years of age, urgently applied to the Supreme Court after the unfortunate and unexpected death of her partner Joshua Davies, for permission to remove Joshua’s sperm for retention which little did she know would soon become the subject of a landmark case.
On 20 June 2018 Justice Brown of the Supreme Court of Queensland granted Ms Creswell the right to possess and use the sperm (subject of course to the policies and procedures of the IVF clinic which holds and may facilitate use of the sperm) after satisfying herself that the sperm could be classed as property and was capable of possession by a person after the death of the donor. Justice Brown noted in her decision that she came to this determination due to several factors, including that the due “work and skill applied” in harvesting and storing the sperm meant that the sperm could indeed be classed as property capable of possession.
The court ordered that the sperm could be used subject to various conditions involving Queensland Fertility Group (QFG) and Women’s Health Only (WHO) are represented in the orders as follows:-
“The order of the court is that:
- Order 4 made by this Court on 24 August 2016 be discharged.
- The applicant is entitled to possession and use of the spermatozoa on the following conditions:
- (a)Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction;
- The applicant must provide the Court and QFG seven days’ written notice of any such direction to transfer the spermatozoa;
- On receipt of the written direction, QFG shall:
- After 7 days, take such steps as are necessary to deliver the spermatozoa to WHO; and
- Within 7 days of such transfer, inform the Court in writing of the transfer.
- The applicant pay the costs of such transfer;
- The spermatozoa must only be used in a treatment procedure or procedures;
- In conjunction with an oocyte or oocytes produced by the applicant; and
- To produce an embryo or embryos to be implanted in the applicant.
- The spermatozoa must be used only under the control and supervision of QFG and/or WHO. “ – Re Cresswell  QSC 142
It is important to note that Mr Davies did not leave direction as to the possession of his sperm after death, however, Ms Cresswell allegedly had the full support of Mr Davies’ family and friends in making the application after the sudden death of her partner after a three-year relationship. In fact, Mr Davies parents filed affidavits in the case supporting Ms Cresswell’s position, along with Ms Cresswell’s father and two of her friends.
This is a landmark case and an interesting and developing area of law for the following reasons:-
- The use of posthumous reproductive tissue relies on medical technology that has not been in existence for a long period of time. Therefore, the law has to play “catch up” as to the medical advances already made, and constantly being made in that field.
- Applications of this kind are few as the subject posthumous sperm must still be viable for the application to be of any use to the applicant. This requires an urgent application by the applicant in order to harvest and store the sperm, and in this case, that was done at 4.30AM the morning after Mr Davies’ death.
- The issue has a broader scope applying to only the issue of property in the tissue, but also the applicant, their capacity to parent and their ability to emotionally, financially and physically parent (noting that the donor is deceased so sole parenthood is assumed), the rights of a child conceived from the tissue and the likely impact on society after such a landmark decision is made.
- The protective nature of the law, in particular, the need for the law to protect those who are in need of care and cannot act for themselves (see MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at  as referenced in Re Cresswell).
- Whether the provisions of the Transplantation and Anatomy Act 1979 (Qld) apply in relation to the posthumous harvesting of sperm and whether or not those provisions allow for the harvest in each case.
- The authorities establishing the principle that there can be no property in a corpse, and that it is a misdemeanour for a person to improperly or indecently interfere with a dead body or human remains without lawful justification or excuse – see section 236 of the Criminal Code 1899 (Qld) and an interesting case concerning an application for the removal of posthumous sperm Re Gray  2 Qd R 35.
- The considerations that must be carefully examined in relation to what is in the best interests of any child produced by the use of the sperm – that is, the child will grow up with one surviving parent and the impact that the conception may have on the produced child both physically and mentally.
It is clear that as medical technology continues to develop, the law will need to adapt and change in order to keep up with those developments. As well as this, as lawyers, we must keep abreast of the changes and most recent case updates and landmark decisions in this sphere.
It will be interesting to see the developments in the law as medical technologies improve, and also how key bodies go about investigating and implementing changes and challenges as they arise. One thing is for sure – practitioners should watch this space!