The use of posthumous sperm

With thanks to Associate Professor Tina Cockburn for noting the decision yesterday in the mater of Cresswell v Attorney-General for the State of Queensland [2018] QSC 142.

The present decision arose against the background of an earlier order for the removal of sperm from the late Mr Davis. Ms Cresswell now sought orders that she is entitled to possession and use of the sperm, subject to various conditions.

There is no statutory regime in Queensland which applies to the use of posthumous sperm(at [3]).

In a detailed judgment the court ultimately concluded at [232] that:

  • The removal of the testes and the sperm for use in assisted reproductive treatment was for a medical purpose and an authority was required under part 3 of the Transplantation and Anatomy Act 1979 (Qld). It is likely that the removal of the sperm from Joshua Davies was in compliance with the part 3 of the TAA but in the absence of further evidence I cannot be satisfied that it did in fact comply with the TAA. I am satisfied that there were no insurmountable hurdles to compliance with the provisions had they been addressed at the time that the order for removal was made. The removal was, however, carried out under a court order of a superior court which is valid and was therefore lawful;
  • Once the sperm was separated from the body of Joshua Davies, it was property capable of permanent possession given that its removal, separation and preservation was the result of the lawful exercise of work and skill;
  • Ms Cresswell was prima facie entitled to possession of the sperm as Joshua Davies’ partner, as the medical and laboratory staff were acting as her agents in undertaking the work and skill required to separate and preserve the sperm;
  • The discretionary factors weigh in favour of making the declarations sought and the declarations should be granted.

Interestingly there was reference to the best interests of the child, with the court noting at [194] that while this is an important factor, as the Court identified in Re Estate of Edwards and in MAW, the best interests of a child who has not been and may not be conceived is difficult to talk about sensibly.