In the recent case of Re Cresswell  QSC 142 (20 June 2018), Justice Brown made orders allowing Ms Cresswell to use her deceased former partner, Mr Davies’ sperm and undergo IVF treatment.
Ms Cresswell and the deceased Mr Davies had enjoyed a relationship for approximately three years when Mr Davies, without any apparent warning signs or any obvious trigger, took his own life on 23 August 2016. The deceased died intestate and without leaving any written indication of his testamentary intentions, particularly as to any expressed wish for the use of his sperm by Ms Cresswell upon his death.
An urgent application was heard the next day by the Supreme Court. In that application an order was made by Burns J that the testes and spermatozoa (“sperm”) of Mr Davies be removed and provided to an IVF clinic nominated by Ms Cresswell for storage, pending a further application to this Court for its use. The procedure was successful.
Ms Cresswell Submission
In the current application before the Court, Ms Creswell sought declarations that she was entitled to the possession and use of the sperm retrieved for the purpose of assisted reproduction.
The question for the Court to decide was whether Ms Cresswell had a right to possession of sperm, removed after his death. In making this application, Ms Cresswell notably had the support of her family and Mr Davies’ family, in particular his father and his mother.
There were four issues to be determined:
1. Was the original taking of the sperm lawful?
The Transplantation and Anatomy Act 1979 provides a statutory regime for the removal of tissue (including sperm) from a deceased person. It makes it an offence to remove tissue from the body of a deceased person unless conditions such as the consent of the senior available next of kin, and removal for medical or scientific purposes. As the death was a “reportable death” it was a requirement of the Act that the consent of the Coroner be obtained, before the sperm was removed. This had not been done.
Her honour concluded that the removal of sperm for reproductive treatment is a “medical purpose.” The consent of the senior available next of kin in this case would have been satisfied and the removal was done pursuant to an order of the court and so was authorised by law.
The original taking of the sperm was lawful.
2. Was the sperm that had been removed property and capable of being possessed?
There is a long established principle that there can be no property in a human body. However, there are two exceptions to this rule:
a. The personal representatives have a right to custody for the purpose of disposing of the body (i.e. Burial or cremation); and
b. In Doodeward v Spence (1908) 6 CLR 406, the High Court held that a body, or parts removed from a body may become the subject of property rights where “work or skill” is applied. Her Honour concluded that “the present state of law in Australia” is that rights of property can exist in a sample of sperm from a deceased person “based on the application of Doodeward to the circumstances”.
3. Did Ms Cresswell have an entitlement to possession and use of the sperm?
Her Honour concluded that the removal, separation and preservation of Mr Davies’ sperm had involved “work and skill,” therefore it was considered property. The laboratory staff in carrying out the work had acted as agents for Ms Cresswell. Therefore Her Honour was satisfied that Ms Cresswell had a primie facie entitlement to permanent possession of the sperm.
4. If Ms Cresswell does have such an entitlement, how is it affected by discretionary factors which must be considered in determining whether a declaration be made in her favour?
Before determining whether the Court should exercise its discretion, a number of factors were considered including the following:
a. Whether the sperm could be lawfully used in assisted reproduction;
b. The consent or wishes of the deceased;
c. The best interest of any child that may be conceived;
d. Community standards; and
e. Whether Ms Cresswell’s desire to use the sperm to conceive was an emotional response to grief.
Justice Brown made the declarations sought by Ms Cresswell that she was entitled to the possession and use of the sperm for the purpose of assisted reproduction.