Is It Possible to Remove, and Use, a Person’s Sperm After Death? Re Cresswell [2018] QSC 142

Re Cresswell, decided by the Supreme Court of Queensland on 20 June 2018, is an interesting decision about the ability of a deceased person’s partner to obtain a court order to ‘harvest’ their partner’s sperm, in order to try to conceive a child.

Facts: Mr Davies died by suicide on 23 August 2016. At the time of his death, Mr Davies had never made a valid Will, nor had he discussed his testamentary intentions with anyone or left any written notes about the distribution of his estate. When he died, Mr Davies had been in a relationship with Ms Cresswell for around three years. They were living together, had been saving to purchase a house, and had discussed getting married and having children together. After his death, Ms Cresswell sought to obtain Mr Davies’ sperm, so that she could use it to try to conceive his child.

On 24 August 2016, Ms Cresswell obtained an emergency Court order for the removal of Mr Davies’ sperm and testes. The Court ordered that the sperm and testes were to be stored at an IVF clinic, pending a further application by Ms Cresswell for an order for its use in IVF treatment.

Decision: The Court hearing to decide whether Ms Cresswell could be legally entitled to Mr Davies’ sperm was held 15 September 2017. Mr Davies’ parents fully supported Ms Cresswell’s application, however, as this was the first such application made after recent changes to the Transplant and Anatomy Act 1979 (Queensland), the Queensland Attorney-General appeared as amicus cariae.

Brown J found that the removal of the sperm fell within the meaning of “medical purpose” in s 22 of the Transplant and Anatomy Act 1979 (Queensland), and that, once it had been removed, the sperm was property that was capable of being possessed, given that its removal, separation and preservation was the result of the lawful exercise of work and skill. The Court, in deciding whether to make the declarations sought by Ms Cresswell, considered a number of discretionary factors, including what would be in the best interests of the (potential) child, whether Ms Cresswell’s decision was a rational one, the support of Mr Davies’ parents, and the prevailing community standards. In making its decision the Court also considered the approach taken in other jurisdictions, and the difficult ethical issues in relation to the posthumous collection and use of sperm.

The Court made the declarations that Ms Cresswell sought, ordering that she was entitled to possession and use of Mr Davies’ sperm, and permitting her to use it for IVF treatment.

Relevance in Tasmania: It is important to note that s 22(1)(b) of the Transplant and Anatomy Act 1979 (Queensland) requires that a deceased “had not, during his or her lifetime, expressed an objection to the removal after death of tissue from his or her body”. The corresponding Tasmanian provision (s 23 of the Human Tissue Act 1985 (Tasmania)), reverses that onus, requiring that the deceased “had, during his lifetime, expressed the wish for, or consented to, the removal after his death of tissue from his body”. It is likely that, in order to achieve a similar result in practice in Tasmania, an applicant must establish that the deceased specifically and expressly consented to the removal for “the purposes of the use of the tissue for … therapeutic, medical or scientific purposes”.

Robert Meredith, Senior Associate and
Kate Moss, Partner
Worrall Moss Martin Lawyers