In the Supreme Court of Queensland decision of Re Cresswell [2018] QSC 142, Justice Brown has made orders that will allow a young woman (Ms Creswell) to undergo IVF treatment in the hope of becoming pregnant. IVF treatment has been assisting people to become pregnant for decades, so you may be wondering why this matter is so special.

The reason why much will be said about this case is that the IVF treatment to be undertaken will use the sperm of Ms Creswell’s former partner, Mr Davies, who tragically passed away on 23 August 2016; nearly two years before the Order permitting use of his sperm.

In the 24-48 hours after Mr Davies’ sudden death, Ms Creswell, with the support of Mr Davies’ family, obtained an order for the removal and storage of Mr Davies’ sperm, pending any further application she might bring, for the use of that sperm to try and have a child.

One can barely comprehend the grief the family must have been experiencing on the morning they discovered Mr Davies had died, let alone what it took to organise everything required to secure an urgent order from the Supreme Court.

The application was made in the early hours of 24 August 2016.

Ms Cresswell and Mr Davies had been in a relationship for around three years before his death. They had discussed getting married and having children together and Mr Davies had described Ms Cresswell to his father, as ‘the one’.

The couple had not been trying to conceive a child but had both considered that they may need to consider trying for a family soon, as they had concerns about fertility issues. However, there was no express evidence before the Court that Mr Davies consented to the use of his sperm after his death.

The application by Ms Cresswell to have Mr Davies’ sperm released to her for the purposes of IVF treatment (in the hope of conceiving a child) had the full support of Mr Davies’ parents, her own father, and close friends, who all provided evidence that Mr Davies had wanted to start a family with Ms Cresswell.

As you will appreciate, the issues before the Court were complex and included:

  1. Was the Order permitting the removal of Mr Davies’ sperm on 24 August 2016 lawfully made?
  2. Was the removal of Mr Davies’ sperm on 24 August 2016 for a ‘therapeutic or medical purpose’?
  3. Had Mr Davies, while alive, expressed his opposition to the use of his sperm after his death?
  4. Was Mr Davies’ sperm, removed after his death, property capable of being possessed by anyone?
  5. If the sperm was property, was Ms Cresswell entitled to possess the sperm?
  6. How should the Court consider the best interests of a child who is yet to be conceived?

By way of very short summary, the Court concluded:

  • The removal of the sperm from a deceased person in accordance with the Transplant and Anatomy Act 1979 (Qld) for use in assisted reproductive treatment is for a ‘medical purpose’ under that Act.
  • Sperm removed from deceased persons after death is capable of being property.
  • Sperm removed from a deceased person does not form part of their estate.
  • The person who is entitled to possession of the sperm, removed after the death of a person, is the person who exercised the work and skill to remove the sperm or the person for whom they act (in this case Ms Cresswell).
  • Ms Cresswell was entitled to possession of the sperm.
  • Mr Davies had not made any statement while he was alive that would suggest he was opposed to the use of his sperm after his death.
  • Ms Cresswell, and the evidence of Mr Davies’ family, her own family and her close friends, satisfied the Court that any child born from the use of the sperm, would be loved and cared for by her and her family.
  • The application by Ms Cresswell to have access to the sperm, at a time determined by her, was not brought out of grief and emotion alone. Enough time had passed since Mr Davies’ death and Ms Cresswell had undergone counselling to deal with her grief. Any decision by Ms Cresswell to proceed with the IVF treatment was made rationally and reasonably.

There is no doubt this case arose from the most tragic of circumstances.

This was a decision that had not been made before in Queensland and is an area of emerging law.

Ultimately, whether Ms Cresswell is entitled to use the sperm in any assisted reproductive treatment will be a matter for the authorised clinic she engages to assist her. There are guidelines the clinic must address before the sperm from Mr Davies can be used.

What we can be certain of though, is that this will not be the last time a court is required to consider an application of this nature. The availability of assisted reproductive technology means that, where a partner dies suddenly or unexpectedly and where steps have not been taken before his death to extract and store his sperm (for example, before undergoing chemotherapy treatments), surviving partners now have a clearer understanding of the legal framework that will be applied should they wish to preserve the right to then have a child, or perhaps more children, with their deceased partner.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.