List member Kathryn McMillan QC appeared for the successful Applicant in Re Cresswell  QSC 142.
Mr Davies tragically took his life in 2016. His partner of three years, Ayla Cresswell, had urgently applied to the Supreme Court for removal and storage of his sperm and Burns J granted that order. Ms Cresswell then applied to the court in September 2017 to use the sperm in IVF treatment.
Brown J identified four issues to be resolved:
(1) whether the Transplantation Act applied to the removal of the sperm and, if so, whether its terms were satisfied;
(2) whether the removed sperm was property capable of being possessed;
(3) whether Ms Cresswell was entitled to possession and use of the sperm; and,
(4) how any such entitlement was affected by discretionary factors.
The Attorney-General, appearing as amicus curiae, submitted that the Transplantation and Anatomy Act 1979 (Qld) (‘the TAA’) applied to the posthumous retrieval of sperm. Whether the TAA applied largely depended on whether the removal of the sperm was for “other therapeutic purposes or for other medical or scientific purposes” and, if so, an authority under Part 3 was required. Ms Cresswell contended that the purpose was the preservation of the sperm and the TAA did not apply. Absent the TAA applying, there are divergent authorities on removal of sperm.
In Re Gray  2 Qd R 35 Chesterman J refused an application made on behalf of the wife of the deceased where the deceased had passed away in his sleep. The couple had been planning on a second child. He found the Court’s parens patriae jurisdiction did not apply, and held that s 236 of the Criminal Code could apply to interference with a body to collect sperm. He also considered that the removal of the sperm was not for “therapeutic … or… other medical or scientific purposes”. Muir J followed Chesterman J’s approach in Baker v State of Queensland  QSC 002. Authorities in other states disagree with the jurisprudence established in Re Gray and Baker.
In Queensland decision of Re Denman  2 Qd R 595 Atkinson J considered that the Court had an inherent jurisdiction to allow behaviour that is not unlawful. She considered there were two questions: one as to removal, and one as to use. Her Honour liked the case to an interlocutory application and only determined the former question, finding that the balance of convenience favoured the removal of the sperm due to the tight timeframe.
In other states, courts have considered whether the removal of sperm was for “medical or scientific purposes”. In AB v Attorney-General (2005) 12 VR 485 Hargrave J stated that, if it had been relevant for him to decide, he would have found that the purpose of removing the sperm was for medical purposes within the meaning of the relevant legislation. Similarly, Habersberger J in Y v Austin Health Y v Austin Health (2005) 13 VR 363 considered that the obtaining of sperm for use in reproduction would be for “medical purposes”. Hulme J in Edwards; Re Estate of Edwards (2011) 81 NSWLR 198 found that the removal of sperm could be regarded as “for medical purposes”.
Justice Brown considered that “medical purposes” was wide enough to encompass the removal of sperm. The TAA therefore applied and it was necessary to determine whether it has been complied with.
The Attorney-General contended that the removal was not properly authorised because it was done without the Coroner’s written approval as required by s 48(1) and s 24 of the TAA. Burns J had noted that there was not time to notify the Coroner, and ordered that the order be served upon him. The Coroner indicated by telephone that he had no objection to Ms Cresswell’s proposed course of action. Brown J found that any non-compliance was of a non-substantial nature. Her Honour found that, in any case, the removal was authorised by law under s 48(3)(b) of the TAA, which provided that s 48(1) does not apply to any other act authorised by law. The Court had authorised the removal.
Absent a jurisdiction based on parens patriae, Brown J turned to notions of property to decide whether Ms Cresswell could have a right of possession in the sperm, re-examining the general principle that there can be no property in a corpse.
Ms Cresswell relied upon Doodeward v Spence (1908) 6 CLR 406 which established that a body, or a portion thereof, could be capable of constituting property of the person who performed work and skill upon it.
In Edwards; Re Estate of Edwards, the sperm had already been removed from the deceased husband pursuant to a court order after he died in a workplace accident. Hulme J found that the Applicant’s role as administrator of the estate did not entitle her to the sperm. However, he considered that the doctors who extracted the sperm were acting for the benefit of the wife and she was therefore entitled to possession of it. There was no one else who had an interest in the sperm.
This reasoning was followed by Gray J in Re H, AE (No 2)  SASC 177 where the sperm had also been extracted pursuant to court order. Work and skill had been performed upon the sperm by the laboratory staff in order to preserve it, and it therefore could be considered property. He viewed the lab staff in exercising the skill had been agents of the wife and found that she had prima facie entitlement to the sperm, pending her submissions on whether she was able to be lawfully provided with IVF under the State legislation. In Re H, AE (No 3) (2013) 118 SASR 259 Gray J granted the Applicant possession of the sperm even though she was unable to obtain treatment within the State.
Brown J concluded that sperm taken from a deceased cannot be property and does not form part of the assets of the deceased. However, once work and skill is applied to the sperm in the form of preserving it, a right of permanent possession is held by those who performed the work, or the principal on whose behalf the work was performed, in this case Ms Cresswell.
Brown J then turned to consider discretionary factors, such as the deceased’s wishes, the likelihood that the sperm would be used, the best interests of the prospective child and community standards.
She stated that although the sperm was not the property of Mr Davies, his wishes were still relevant. There was evidence that the couple had discussed having children, and had medical check-ups with respect to the prospect. His friends and family believed he would support the Application. Both the Applicant’s family and the deceased’s family supported the Application. There appeared to be no objection to the use of the sperm, although the Attorney-General neither consented nor opposed. Further, Ms Cresswell has had counselling in which she discussed her decision. She was willing to engage in any further counselling that might be required.
Brown J agreed with the observations of Hulme J in Re Estate of Edwards that a consideration of the “best interests” of a child that may not be conceived is fraught. However, her Honour had regard to evidence that the child would be loved and supported by the family of Ms Creswell and Mr Davies. Community standards were another discretionary factor referred to by her Honour. Justice Brown concluded that there is nothing contrary to community standards suggesting that making declarations would be contrary to public policy. However, her Honour noted that it was ultimately a matter Parliament should address.
Ultimately, Brown J found:
- “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 TAA. 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.”
See judgment here: https://archive.sclqld.org.au/qjudgment/2018/QSC18-142.pdf
Case note written by Kathryn McMillan QC and Krystal Harlen