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Supreme Court decision to allow the sperm of a deceased person to be used by the surviving partner

Court grants Ayla Cresswell the right to use sperm of her dead partner

In a landmark decision which will have ramifications for family law and succession law, on 20 June 2018 the Supreme Court in Brisbane granted a Toowoomba woman the right to use her dead partner’s sperm to have a baby.

Orders to preserve sperm made just hours after death

Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested following an urgent court application supported by Joshua Davies’ parents. Ms Cresswell then sought approval from the Supreme Court to use the sperm, which had been stored at an IVF clinic.

Couple had planned to have a family

The court heard Ms Cresswell and Mr Davies were in a relationship for three years, were saving for a house and planning to get married and have a family. Shortly before his death, Mr Davies expressed a desire to his family and friends to settle down and have children.

Sudden suicide

The judgment said Mr Davies “without any apparent warning signs or any obvious trigger, took his own life” and had sought help for depression. On the day of Joshua’s passing, Ms Cresswell told Mr Davies’ father, John Davies, that she wished that she was pregnant. John Davies spoke with his wife Iona Davies and they supported Ms Creswell in her court applications.

Not a pure grief reaction

Ms Cresswell’s lawyer Kathryn McMillan QC, told the court the passage of time was important. “This is not a pure grief reaction,” she said. “She’s thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive.”

Support of paternal grandparents

Ms McMillan said while the child would not have the benefit of a father, there was support from a paternal and maternal grandfather.

Conditions attached to orders

The court made the orders subject to several conditions, including that Ms Cresswell was the only person who had a relevant interest in the sperm and the practitioners who removed the sperm did so for her benefit. The court also decided the sperm could be deemed to be “property” and that Ms Cresswell was entitled to permanent possession.

Emerging law

Before this decision, the sperm of a deceased person has not been allowed to be extracted and used for procreation previously in Queensland.

The decision raises new issues in family and succession law and ethical issues about whether a child should be created in the knowledge he or she will never know one of its parents.

The full text of the court’s judgment may be read by clicking here.

 

Disclaimer

This article was written by Margaret Miller, partner at Bell Legal Group. It is general in nature, is not legal advice and must not be relied on as such. If you need assistance with a Family Law matter, please contact Alex Wynn to obtain advice specific to your circumstances. Call 07 5597 3366 or send an email to awynn@belllegal.com.au