‘To have a child who he would never know’ – Consideration of the posthumous removal and use of sperm

In the recent decision of Re Cresswell [2018] QSC 142, her Honour Justice Brown delivered the first Queensland judgment to consider the court’s jurisdiction to order a person’s entitlement to possess and use spermatozoa (sperm) removed from a deceased person.

The applicant and the deceased were in a three year relationship during which they had lived together and made plans for the future, including saving for a home and discussions of marriage and starting a family together. On 23 August 2016, the deceased tragically took his own life, without any apparent warning signs or trigger. He died intestate and had not expressed his testamentary intentions.

With the support of the deceased’s family ancd her own, the applicant filed an urgent application in the Supreme Court of Queensland on 24 August 2016 for the removal of the deceased’s sperm with the intention she use it to conceive a child through assisted reproductive treatment. The court ordered the testes and sperm of the deceased be removed and appropriately stored pending further application as to the use of the sperm in artificial insemination.

The applicant sought orders that she was entitled to possession and use of the sperm for the purpose of assisted reproductive treatment. The Attorney-General did not consent or oppose the making of such orders but appeared as amicus curiae to assist the court. In determining this issue, her Honour Justice Brown addressed four issues.

Although the removal and appropriate storage of the deceased’s testes and sperm had been authorised by order of the Supreme Court in August 2016, her Honour considered the legal basis of such an order to be a preliminary issue. The court decided that the Transplantation and Anatomy Act 1979 (the Act) provides a statutory regime for the removal of sperm from a deceased person for use in assisted reproductive treatment, defining this procedure as a medical purpose under the Act.

The Attorney-General submitted that as the removal had not been properly authorised pursuant to the Act, there was an issue as to whether the unlawfully removed property could be used by the applicant. Her Honour considered the divergent Queensland authorities dealing with the court’s jurisdiction in determining that the technical non-compliance with the legislation was not insurmountable as the removal had been authorised by law through the valid order of a superior court made in August 2016.

The court then turned to the question her Honour described as vexed as to whether sperm could be characterised as property capable of being possessed. After comprehensively analysing relevant Australian and English authorities, her Honour concluded the position in Queensland is that sperm removed from a deceased person is capable of being property where lawful work and skill has been applied to its removal, separation and preservation. The only additional exception to the traditional principle that there is no property in a corpse is where the removal of sperm from the body occurred while the donor was living and had provided consent. In all other circumstances, sperm retrieved posthumously is not capable of property and does not form part of a deceased’s estate.

Her Honour was satisfied that laboratory staff had applied work and skill to the deceased’s sperm in the process of removing, separating and preserving the sperm and that it was therefore property capable of possession. That work and skill was carried out by the laboratory staff as agent for the applicant, who was the only person claiming possession of the sperm. The court held that the applicant was therefore the only person who was prima facie entitled to possession of the sperm.

Her Honour did not consider there were any discretionary factors which would preclude the making of the order in the appropriate exercise of the court’s discretion. Although there is no Queensland legislation governing the use of a person’s sperm posthumously, there was evidence that assisted reproductive treatment could proceed subject to medical guidelines. The court accepted evidence from the applicant, her family, the deceased’s family and the couple’s friends that she and the deceased had been in a committed, permanent relationship and had intended to have children together. There was a real prospect the deceased’s sperm would be able to be used for assisted reproductive treatment and that was the only purpose of the orders sought. There was no evidence to suggest that the best interests of any child conceived using the deceased’s sperm would not be fulfilled by the applicant and extended family, including through financial and emotional support. There was no suggestion that the making of the orders sought by the applicant would be contrary to community standards or public policy. The applicant demonstrated her decision to attempt to conceive a child using the deceased’s sperm was one consciously reached after giving rational consideration to the implications of her application being successful.

Her Honour ordered that the applicant was entitled to permanent possession and use of the deceased’s sperm for the purpose of assisted reproductive treatment. Such use was to be determined by an assisted reproductive treatment clinic in accordance with relevant guidelines.

Although this judgment provides clarification of this complex area of law, it may be the case, as was suggested by her Honour, that comprehensive consideration by a body such as the Law Reform Commission is necessary to deal with the unresolved and continually developing legal, technological and ethical questions.