Ms Ayla Cresswell and Mr Joshua Davies were in a relationship for approximately 3 years. They had discussed getting married and having a family.
On 23 August 2016, Mr Davies, without any apparent warning signs or any obvious trigger, tragically took his own life.
In the early hours of 24 August 2016, Ms Cresswell made an urgent application to the Supreme Court of Queensland, seeking orders for the removal of sperm from Mr Davies. The application was heard urgently and Her Honour Burns J ordered that the testes and spermatozoa 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.
Ms Cresswell later made a further application and sought an order that she is entitled to possession and use of Mr Davies’ sperm, subject to various conditions. In making the application, Ms Cresswell had the support of her family and Mr Davies’ family, in particular his father and mother.
Her Honour Brown J noted that the Court’s power to order the removal and use of posthumous sperm has been the subject of uncertainty, particularly because many cases have had to be determined on an urgent basis, to ensure that the sperm is removed and preserved while it is still viable, within a 24- to 48-hour period after death. There is no statutory regime in Queensland that applies to the use of posthumous sperm.
Brown J considered that the removal of the sperm was for a medical purpose and that consent was given by the senior available next of kin for that purpose. Her Honour then turned to consider the question of whether there is an entitlement to use the sperm removed, noting that the question of removal is different from the question of the determination of the use of the sperm.
Her Honour found that Ms Cresswell has a right of permanent possession to the sperm. It remains a matter for the ART clinic concerned to determine whether it is satisfied to proceed to facilitate the use posthumously of the sperm removed from Mr Davies, having regard to its guidelines, including the NHMRC guidelines. Further, the terms of the Court order does not require the ART clinic to use the sperm or carry out any procedure. And the ultimate decision as to whether to proceed at all remains with Ms Cresswell and no one else.
Accordingly, the court upheld Ms Cresswell’s application and ordered that she is entitled to possession and use of the sperm, with certain conditions.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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