The applicant sought declarations that she was entitled to the possession and use of sperm retrieved from her deceased partner for the purpose of assisted reproduction. Justice Brown considered whether the original taking had been lawful, given the absence of consent from a Coroner. In that regard, her Honour held that the taking had been lawful as it was authorised by an order of the Court. Her Honour also considered whether the stored sperm was property capable of being possessed – concluding that it was, due to the application of “work and skill” in removing and preserving it such that it acquired different attributes and was capable of being property (applying the High Court’s decision of Doodeward v Spence).
20 June 2018
Ms Cresswell was the partner of Mr Davies, who unexpectedly took his own life in August 2016. . Shortly after his death, Burns J heard an urgent application to enable the testes and sperm of Mr Davies to be removed and provided to an IVF clinic for storage. . That application – and the resulting procedure – were successful. –. In this application, Ms Cresswell sought declarations that she was entitled to possession and use of the stored sperm for the purpose of assisted reproduction. .
Whether the original taking of the sperm had been lawful
The Transplantation and Anatomy Act 1979 (“TAA”) provides a statutory regime for the removal of tissue (including sperm) from a deceased person. That scheme does not require parties to come before the court for authorisation to permit removal. Nonetheless, in this case the applicant had come to the court. Her Honour considered whether the Act had been complied with, as non-compliance could affect the lawfulness of the previous order or any order made in this application. , .
The TAA makes it an offence to remove tissue from the body of a deceased person unless certain conditions are met. Pursuant to s 22, those conditions include consent being obtained from the senior available next of kind, and removal being for the purpose of transplantation into another person or “other therapeutic … medical or scientific purposes”. . Brown J agreed with the view expressed in a number of cases that the removal of sperm for reproductive treatment is a “medical purpose”. . Her Honour also considered that the other conditions in s 22, such as consent of the senior available next of kin, “would have been satisfied” in this case. .
However, the Attorney-General (appearing as amicus curiae) submitted that the removal had been not been properly authorised because the consent of the Coroner had not been obtained. This was required by s 24 of the Act as Mr Davies’ death was a “reportable death”. , . On the evidence, Brown J could not conclude that this requirement had been complied with. . However, s 48(3)(b) of the TAA provides that the offence of removing tissue also does not apply “to any other act authorised by law”. . Her Honour noted the well-established principle that an order of a superior court is valid unless and until it is set aside (Cameron v Cole (1944) 68 CLR 571). In this case, the removal of Mr Davies’ testes and sperm was done pursuant to such an order of the court, and so was authorised by law. .
Whether the sperm was property capable of being possessed
In Queensland there is no statutory regime governing the posthumous use of sperm. As a result, Her Honour considered that whether a party is entitled to possess and use any sperm that has been removed, “depends on whether the sperm can be characterised as property, and if it is, who has rights in relation to that property”. .
At common law there is a long-established principle that there can be no property in a human body. , . However, there are two exceptions to this rule: one is that personal representatives have a right to custody for the purpose of disposing of the body (e.g. by burial or cremation). . Secondly, 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. , . In that case the court recognised the possessory rights of a doctor to the body of a stillborn baby, which he had preserved with spirits in a bottle. . After reviewing a number of authorities, her Honour concluded that “the present state of the law in Australia” is that rights of property can exist in samples of sperm from a deceased person “based on the application of Doodeward to the circumstances of the particular case”. .
Her Honour was satisfied that the removal, separation and preservation of Mr Davies’ sperm had involved “work and skill”. The laboratory staff, in carrying out that work, had acted as agents for Ms Cresswell. As such, Brown J was satisfied that Ms Cresswell had a prima facie entitlement to permanent possession of the sperm. –.
Whether the declarations should be made
In determining whether the court should exercise its discretion to grant declarations, Brown J considered a number of factors, including: whether the sperm could be lawfully used in assisted reproduction (e.g. that a treatment provider could abide by its accreditation guidelines and use Mr Davies’ sperm to help Ms Cresswell conceive); the consent or wishes of the deceased; the best interests of any child that may be conceived (recognising that any child would not have the support or presence of its father); whether the declarations would accord with any community standards; and whether the applicant’s desire to conceive using the sperm was an emotional response to grief. .
Brown J concluded that it was appropriate to make declarations that Ms Cresswell was entitled to the possession and use of the sperm. The use of the sperm was limited to use in conjunction with her egg cells for the production of an embryo (or embryos) to be implanted into her. .