IVF and Legal Precedent – Re Cresswell Qld

Re Cresswell [2018] QSC 142

This civil case from Queensland concerned an application by a woman for a declaration, that she was entitled to the possession of her late partner’s sperm.  The woman sought this declaration, so that she could later undergo an IVF procedure.

When this case was heard, there was Queensland legislation in place regarding removal of tissue after death, but no law regarding removal of sperm or the subsequent use of such sperm from a deceased person.  

When there is no clear law for a judge to rely upon in making their decision, the judge has to consider similar laws and cases and then form a view based on their experiences and judgement, as to what the best outcome is for the people in the case. This case is an example of how a judge creates a new legal precedent.

This case sets out clearly what legal steps need to be taken by medical staff, family and lawyers, for sperm from a deceased person to be removed. This case found that such steps should not usually include the need to apply for a court order.  The case also discussed whether human body parts could be property and therefore owned or possessed and how those parts could be used.

In this case Justice Brown discussed the following legal issues:

1. the legal basis for removal of sperm from a deceased person under the Transplantation and Anatomy Act 1979 (Qld);
2. whether sperm can be property and therefore legally owned or possessed by a person;
3. whether the applicant had an entitlement to possession and use of the removed sperm; and

The Facts of The Case

Ms Cresswell had been in a relationship with Joshua Davies for approximately 2 ½ years, when he sadly took his own life on 23 August 2016.

Shortly after her partner’s death, Ms Cresswell  took steps, with the full support of Joshua’s parents, to seek a court order for the removal of his sperm.  Joshua did not leave a will and had not previously given any instructions that allowed for the removal of his sperm, should he die.

Ms Cresswell  made an urgent application to the Supreme Court of Queensland, seeking orders for the sperm to be removed from her partner. The application was heard on an urgent basis on 24 August 2016, the day after Joshua’s death, Justice Burns of the Supreme Court, made an order that the sperm could be removed.  The sperm was removed shortly thereafter and sent to a fertility clinic for freezing.

The sperm was held in the clinic, pending the court’s decision in this case, on whether Ms Cresswell was entitled to use it for IVF treatment.

Legal issue 1 – The Legal Basis for Removal of the Sperm

When an order was made on 24 August 2016 for the  removal of the sperm, the court did not consider sections 22 and 24 of the Transplantation and Anatomy Act 1979 (Qld) (‘the Act’) [148]. The Act deals with the process of authorisation required for the removal of human tissue after death [149].  

In the current case, the court therefore had to consider whether the order of 24 August 2016 was legal.

There are certain criteria under section 22 of the Act, that need to be met for the removal of tissue from a deceased’s body [52].  These are:

(a) that the deceased is in a hospital;

(b) that a designated officer of the hospital, after making reasonable enquiries, finds that the deceased did not object to such removal during their lifetime; and

(c) that a ‘senior available next of kin’ has consented to removal for other therapeutic, medical or scientific purposes.

Justice Brown found that:

(a) the deceased was in the Toowoomba Base Hospital [59];

(b) a director of Medical Services had appropriately authorised the removal, though it was not clear to the court what enquiries had been made about any objection by the deceased. The court accepted that the evidence from Ms Cresswell and the deceased’s family showed that the deceased had not expressed an objection to the removal after he died.  The authorisation had not been made in writing, as required by the Act, but the court accepted that it was given in any event [63]; and;

(c) that the senior next of kin had consented to the removal of the sperm for IVF, by telephoning the hospital to advise of their consent [64].  Justice Brown decided that the sperm was to be used for ‘other therapeutic, medical or scientific purposes’, as assisted reproductive treatment is a medical procedure [77].

The court also had to consider section 24 of the Act, as a suicide death is reportable to the coroner.  The written consent of the coroner is therefore required for the removal of tissue from that person [80].  

At the hearing on 24 August 2016, Justice Burns noted that the coroner’s consent had not yet been obtained for removal of the sperm, as such removal was required to be done urgently, in order for the sperm to remain viable. His Honour ordered that the coroner be advised of his decision and he was. The coroner subsequently telephoned the medical director at Toowoomba Base Hospital and informed him that he did not object to the removal.  Section 24 of the Act requires, however, that the coroner must authorise the removal in writing and not just state that they do not object [85].

Justice Brown ultimately found that Ms Cresswell had not complied with sections 22 or 24, but had substantially satisfied their requirements.  Any non-compliance was not significant and could be overcome by the evidence to hand [87].

In any event the court found that the removal was properly authorised under section 48(3)(b) of the Act as it was ‘any other act authorised by law’. That act was the order of a superior court made by Justice Burns on 24 August 2016, granting the application for removal of the sperm [94].

Legal Issue 2 – Whether the Deceased’s Sperm was Property

There is no legislation in Queensland that deals with the use of sperm taken from a deceased man.  The court therefore had to consider the common law and specifically whether the sperm could be property and therefore be owned or possessed by anyone. At common law it is generally held that a human body cannot be property [98].   

In this case, the court found that the sperm was property, as work and skill was used in relation to its removal, separation and preservation and through those steps it had acquired different attributes from when it was in the body [165].  Without such work and skill, sperm could only be property in cases where it had been removed, with consent by the donor, before death [163].

Legal Issue 3 – Whether the Woman was entitled to Possession and Use of the Sperm

The person entitled to the sperm that has been removed and preserved is the person who removed it or the person for whom they acted in that work [163].  

The court found that Ms Cresswell was the partner of the deceased and the medical and laboratory staff had acted on her behalf in removing and preserving the sperm.  She was therefore entitled to possession of the sperm [166].

Discretionary Matters Considered by the Court

As the removal of the sperm had previously been authorised by the court under section 48 of the Act, it was therefore required to also use its discretionary power, to determine whether it was appropriate for the sperm to be released to the woman.  

The court looked at evidence regarding whether the sperm could be used for reproductive treatment [173], the wishes of the deceased [178], the best interests of any child born as a result of the application [194], as well as community standards [208].  It determined that there were no discretionary factors that weighed against a declaration that the woman should be entitled to possession of the sperm.

The Court’s Decision

The court ordered that the woman be granted possession of the sperm, but only for the purpose of undergoing reproductive treatment [236].