Tuesday, July 10, 2018

Court: woman can use sperm of her late partner

In what was described as a landmark case, the Queensland Supreme Court ordered that Ayla Cresswell was able to use the sperm of her dead partner Josh Davies.

In Justice Brown's words:

"The present case arises out of the most tragic of circumstances. The applicant, Ms Ayla Cresswell and the deceased, Joshua Davies had enjoyed a relationship for approximately three years when Joshua Davies, without any apparent warning signs or any obvious trigger, took his own life. The question that this Court must decide is whether Ms Cresswell has a right to possession of Joshua Davies’ spermatozoa, removed some 48 hours after his death. In making this application, Ms Cresswell has the support of her family and Joshua’s family, in particular his father Mr John Davies and his mother Mrs Ione Davies."

Justice Brown identified in the judgment, called Re Cresswell that there were four matters to be decided:

  • (1) First, the legal basis for the order to remove the sperm from Mr Davies' body and its present status;
  • (2)Whether the removed sperm is property capable of being possessed;
  • (3) Whether Ms Cresswell has an entitlement to possession and use of the sperm removed from Joshua Davies; and,
  • (4) If Ms Cresswell does have such an entitlement, how is it affected by discretionary factors which must be considered in determining whether any declaration may be made in Ms Cresswell’s favour.
 What was unusual about the case was that on the day that Mr Davies killed himself, not only did he die without having a will (not unusual), but he had not stated either in writing or orally what his intentions were with his estate. No administrator or personal representative was appointed to his estate.

On the day after Mr Davies died, Ms Cresswell obtained (with the support of Mr Davies' parents) an order from the Supreme Court authorising the removal of the sperm from his body and the subsequent storage.

Justice Brown differing authorities, and came to the conclusion that the order for the removal was lawfully made. However, his Honour went on to note that unless there was compliance with the Transplantation and Anatomy Act (which in other States is called the Human Tissue Act), the Supreme Court did NOT have the authority to remove the sperm in the first place.

As to whether sperm was property, Justice Brown found that previous case law, although not binding was collectively, persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment.

Her Honour  said that sperm removed from the deceased is capable of constituting property, where work and skill is exercised in relation to the removal, separation and preservation of the sperm.  The state of the preserved sperm has been found to be sufficient for it to be capable of being property.While there is some support for the notion that sperm or tissue separated from the human body is a thing which is property capable of ownership, without the exercise of any such work or skill, those cases are limited to where the separation occurred while the donor was living and the donor consented to the removal of the sperm.The sperm of a deceased, not removed while they are living, is not capable of being property and does not form part of the assets of his estate upon death. On the face of it, the person entitled to possession of any sperm removed and preserved will be the party who has exercised the work and skill to extract and preserve the sperm or the principal for whom they act.


 Therefore:

  • pursuant to the previous orders of the Supreme Court, the sperm had been removed, stored and frozen by an IVF laboratory.
  • Therefore it had acquired different attributes and was capable of being property.
  • The sperm was property capable of possession by the party entitled to that possession in assisted reproductive treatment.
  • Ms Cresswell was that party.
Her Honour then set out a list of factors to be taken into account when considering whether the sperm could be used, although every case turns on its own facts:

  • (a) Whether the sperm can be legally used in assisted reproductive treatment;
  • (b) Any consent, whether express or inferred, given by the deceased;
  • (c) The likelihood that the sperm of the deceased, if extracted, would be used for the impregnation of his partner;
  • (d) The best interests of any child that may be conceived as a result of the use of the sperm;
  • (e) Whether there are any generally held community standards in respect of the situation proposed and whether the proposed orders accord or do not accord with such standards;
  • (f) Whether the applicant’s desire is a result of careful or rational deliberation as opposed to an emotional response to grief. 
Justice Brown stated:

"I am further satisfied that any child conceived using Joshua Davies’ sperm will be loved and cared for by his or her mother, grandparents, extended family and close friends, and supported by them. While Ms Cresswell and Joshua’s family and friends will always feel his loss, I consider that sufficient time has passed since his death to enable Ms Cresswell and members of his extended family to rationally consider the implications of Ms Cresswell having a child in the circumstances, the needs of that child and whether they could realistically support that child. "

Her Honour then ordered that the sperm could be transferred to another IVF clinic with the intention of using it for Ms Cresswell.

NHMRC Guidelines


Queensland, like Tasmania, the ACT and the NT does not have an Assisted Reproductive Treatment Act. In Queensland, IVF doctors must comply with licensing conditions laid down by the National Health and Medical Research Council. Those conditions are called Ethical Guidelines.

In NSW, Victoria, South Australia and Western Australia there is an Assisted Reproductive Treatment Act. Doctors in those States must comply with the State legislation and with the Ethical Guidelines, to the extent that the latter do not conflict with State law.

Justice Brown made it plain that she was not ruling about how or whether the doctors could comply with the Ethical Guidelines- that was a matter for the doctors and the legal advice they obtained.

The elephant in the room


For such a solid, well researched judgment, there is an elephant in the room. In all the discussion about this case says that sperm is property, and that case says x, the one case I expected to have been referred to was not. In 2003 the High Court in a case called Clark v Macourt made plain that it accepted that sperm stored in an IVF clinic was property.

The case was between two warring IVF doctors. An IVF clinic had been sold. Amongst its stock was sperm and embryos.

The terms of the contract of sale said this:

"Assets means the following assets of the vendor used in or attached to the Business, being the goodwill of the vendor in respect of the Business, Records, Embryos (to the extent title in them can at law pass to the Purchaser) and Sperm but specifically excluding Plant & Equipment and any debts owed to the vendor in respect of the Business as at completion."

It turns out that much of the sperm was non-compliant with regulation. Dr Clark bought the business for about $400,000, but as it turned out paid only $167,000. When she did not pay the balance, Dr Macourt sued. Instead, the trial judge found on Dr Clark's cross-claim that the seller owed damages on the non-compliant sperm of over $1million! The case was primarily about what damages, if any, ought to be paid.

The High Court accepted that sperm stored at an IVF clinic was property. Nowhere in any of the judgments of the court is there any consideration that sperm could not be stock and therefore could not be property.

In the words of Justice Keane:

"At issue in this appeal is the measure of the damages recoverable by a purchaser of assets of a business where the vendor has failed to meet its obligations in relation to the delivery of stock of the business. Because of the unusual nature of the stock involved, the case has given rise to a contest between an approach to the measure of recoverable loss which is focused upon the loss to the purchaser of the value of the stock at the date of completion of the purchase, and one which is focused on the expense incurred by the purchaser to acquire substitute stock in the ongoing conduct of her business."

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