Posthumous Pregnancy

Ayla Cresswell met Joshua Davies in 2013 they began to live together in January 2016 and were saving for a house. They were discussing getting married and having a family at that time.

Joshua took his own life in August 2016. He died intestate with no indication either written or oral of his testamentary intentions. No administrator or executor was appointed to his estate.

On the day that he died Ayla informed Joshua’s father, John that she wished that she was pregnant. John rang the Toowoomba Base Hospital and was informed that if Ayla wanted to have a child with Joshua they would need a court order. Ayla was willing to file an urgent application seeking a Court order for the removal of Joshua’s sperm. Joshua’s parents agreed with Ayla. Joshua’s father telephoned the Toowoomba Base Hospital and informed the Hospital that they would be applying for a court order to remove Joshua’s sperm.

The Supreme Court heard the urgent application the day following Joshua’s death. Joshua’s immediate family, Ayla’s father and friends supported the application. An order was made that the testes and spermatozoa of Joshua Davies be removed and provided to an IVF clinic nominated by Ayla for storage, pending a further application for its use.

The removal was successful with the report stating

“…there would be a reasonable chance of isolating mature sperm, suitable for use in assisted reproductive procedures, if required in the future”. 

Ayla sought orders that she is entitled to possession and use of the sperm, subject to various conditions.

While there is a statutory regime in Queensland for removal of sperm from a deceased person, there is in the present case a question as to whether that applies and whether it was satisfied. There is no statutory regime in Queensland applying to the use of posthumous sperm.

As the removal of the sperm was pursuant to an order of the Court, and the relief sought is declaratory, discretionary factors also have to be considered in making any orders.

In the present case, one of those factors is whether the original order for removal was made when the statutory preconditions had not been met, and whether that affects any order that may now be made by this Court in this application.

The issues to be determined in this case in relation to the sperm that has been removed, is whether it is property capable of being possessed.

If Ayla 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 her favour.

No one opposed the orders sought by Ayla. The Attorney General appeared as amicus curiae– someone not a party to the case who assists the court by offering information, expertise, or insight that has a bearing on the issues in the case

The Court held that Rights of property can exist in relation to samples of sperm removed posthumously and that such rights will generally be enjoyed by the person who caused the sperm to be extracted rather than the deceased, or the relevant medical personnel, or the administrator of the deceased estate.

Precedent dictates that once the sperm was separated from Joshua’s body it was property capable of permanent possession given that the removal, separation and preservation was the result of the lawful exercise of work and skill

Ayla sought declarations that she is entitled to possession and use of the sperm subject to conditions which include:

  • Any consent, whether express or inferred, given by the deceased;
  • The best interests of any child that may be conceived as a result of the use of the sperm;
  • 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;
  • Whether the applicant’s desire is a result of careful or rational deliberation as opposed to an emotional response to grief

The Court after balancing the above factors was satisfied that Ayla is acting with the support of Joshua’s family and her father and that it is not contrary to Joshua’s wishes if she has a child with his sperm. That she is acting responsibly and rationally and has taken appropriate steps to ensure that any child that may be conceived is financially and emotionally supported and that the extended family will support any child and Ayla and is not contrary to the best interests of any child that may be conceived.

The court was satisfied that Joshua was planning to have children with Ayla. The ultimate decision as to whether to proceed at all, of course, remains with Ayla and no one else.

The Court ordered that the sperm be transferred to a clinic for the sole purpose of the production of embryo(s) to be transplanted into Ayla.

The Court believed that as this is a complex and developing area of the law the Law Reform Commission may consider it appropriate for consideration, even though there are a number of issues – both Family Law and Succession that are likely to need to be resolved by Parliament.

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