Re Cresswell

Case [2018] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

Re Cresswell [2018] QSC 142

PARTIES:

AYLA BELINDA CRESSWELL

(applicant)

v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(amicus curiae)

FILE NO/S:

BS No 8583 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2017

ORDER:

The order of the court is that:

1.   Order 4 made by this Court on 24 August 2016 be discharged.

2.   The applicant is entitled to possession and use of the spermatozoa on the following conditions:

(a)     Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction;

(b)     The applicant must provide the Court and QFG seven days’ written notice of any such direction to transfer the spermatozoa;

(c)      On receipt of the written direction, QFG shall:

(i)       After 7 days, take such steps as are necessary to deliver the spermatozoa to WHO; and

(ii)     Within 7 days of such transfer, inform the Court in writing of the transfer.

(d)     The applicant pay the costs of such transfer;

(e)     The spermatozoa must only be used in a treatment procedure or procedures;

(i)       In conjunction with an oocyte or oocytes produced by the applicant; and

(ii)     To produce an embryo or embryos to be implanted in the applicant.

(f)       The spermatozoa must be used only under the control and supervision of QFG and/or WHO.

JUDGE:

Brown J

CATCHWORDS:

HEALTH LAW – ASSISTED REPRODUCTION REGULATION – where the applicant applies for declarations that she is entitled to possession of sperm of her late partner, extracted shortly after his death pursuant to an order of this Court, for use in assisted reproductive treatment – where the Transplantation and Anatomy Act 1979 (Qld) applies to the removal of sperm from a deceased person in Queensland – where there is no statutory regime in Queensland that applies to the use of posthumous sperm – where authorities diverge as to the Court’s power to order removal of sperm from a deceased person and whether there is any power to grant final relief – whether there was compliance with the Transplantation and Anatomy Act 1979 (Qld) in removing the sperm

PERSONAL PROPERTY – DEFINITION AND CLASSIFICATION – OTHER CASES – whether the sperm removed is property capable of being possessed

PERSONAL PROPERTY – OWNERSHIP AND POSSESSION – POSSESSION – RIGHTS OF POSSESSION –– whether the applicant has an entitlement to possession and use of the sperm removed – if such an entitlement exists, whether discretionary factors favour the making of the declarations sought

Criminal Code 1899 (Qld) s 236
Research Involving Human Embryos Act 2002 (Cth) s 8, s 11

Transplantation and Anatomy Act 1979 (Qld) s 4, s 6, s 22, s 24, s 48

AB v Attorney-General (Supreme Court (Vic), Gillard J, 23 July 1998, unreported)
AB v Attorney-General (2005) 12 VR 485
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Baker v State of Queensland [2003] QSC 002
Bazley v Wesley Monash…

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AGLC
Re Cresswell [2018] QSC 142
Case
[2018] QSC 142
Decision Date

CaseChat Overview and Summary

In the matter of Re Cresswell, the applicant sought declarations regarding her entitlement to possess sperm extracted from her late partner, Joshua Davies, shortly after his death. The sperm was removed pursuant to a court order, and the case raised issues concerning the legality of such an extraction and the applicant's right to possess and use the sperm for assisted reproductive treatment. The case also addressed whether the sperm qualified as personal property and whether the applicant was entitled to its possession under the circumstances.

The primary legal issues the court needed to decide were whether the court had the jurisdiction to order the removal of sperm from a deceased person, whether the removal complied with the Transplantation and Anatomy Act 1979 (Qld), and whether the applicant had a legitimate claim to the sperm for use in assisted reproductive treatment. The court had to balance these issues against the statutory provisions of the Transplantation and Anatomy Act and the common law principles regarding property rights in a deceased person's remains.

The court examined the divergent authorities on the jurisdiction to order the removal of sperm from a deceased person, finding that while some authorities, such as Re Gray, suggested the court had no such power, others, like Re Denman, supported the court’s inherent jurisdiction to make such an order. The court determined that the removal of sperm was lawful as it was conducted pursuant to a court order and with the consent of the deceased's senior next of kin. The court also considered whether the sperm qualified as personal property and concluded that the applicant had a legitimate entitlement to its possession under the specified conditions.

Ultimately, the court found that the applicant's desire to use the sperm for assisted reproductive treatment was rational and aligned with the best interests of any potential child. The court granted the declarations sought by the applicant, subject to specific conditions regarding the transfer and use of the sperm, and ordered that the earlier court order be discharged.

Orders

Orders of the court

The order of the court is that:

1. Order 4 made by this Court on 24 August 2016 be discharged.

2. The applicant is entitled to possession and use of the spermatozoa on the following conditions:

(a) Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction;

(b) The applicant must provide the Court and QFG seven days’ written notice of any such direction to transfer the spermatozoa;

(c) On receipt of the written direction, QFG shall:

(i) After 7 days, take such steps as are necessary to deliver the spermatozoa to WHO; and

(ii) Within 7 days of such transfer, inform the Court in writing of the transfer.

(d) The applicant pay the costs of such transfer;

(e) The spermatozoa must only be used in a treatment procedure or procedures;

(i) In conjunction with an oocyte or oocytes produced by the applicant; and

(ii) To produce an embryo or embryos to be implanted in the applicant.

(f) The spermatozoa must be used only under the control and supervision of QFG and/or WHO.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ms Cresswell refers to the fact that there are divergent authorities in relation to the Court’s jurisdiction to order removal of sperm from a deceased person and that some decisions have been made within the inherent jurisdiction of the Court. Decisions as to removal In Queensland, there are divergent authorities as to the Court’s power to order removal of sperm and whether there is any power to grant final relief. One line of authority considers that the Court has no power to make an order for removal at all, the principal authority being Re Gray.[6] Another line of authority, which has been predominantly followed in interlocutory decisions, relies on the inherent power of the Court to permit the making of an order which is in the nature of an interlocutory order, pending a determination of whether there is any jurisdiction for the Court to make orders as to the future use of the sperm, the principal authority being Re Denman.[7] In making the removal order of 24 August 2016, his Honour followed the Re Denman line of authorities, which have also been followed in some other jurisdictions.[8] Western Australian decisions have adopted a third approach which is discussed below. [6] [2001] 2 Qd R 35. [7] [2004] 2 Qd R 595.[8] Eg AB v Attorney-General (2005) 12 VR 485 at [138] to [140]. In Re Gray, Justice Chesterman refused an application made on behalf of the wife of the deceased. The deceased had passed away unexpectedly in his sleep. He and his wife had one child and had been planning on a second. The deceased died intestate. His father had consented to the removal. The deceased and his wife had not discussed the possibility of his sperm being used for her impregnation after his death. It was contended on behalf of the applicant that the Court had jurisdiction under s 8 of the Supreme Court Act 1991 (Qld) or in its inherent jurisdiction of the type described as parens patriae. His Honour considered that the Court’s broad inherent jurisdiction under s 8 would only apply if there was established legal principle to support the decision. His Honour found that the parens patriae jurisdiction gave no power to the Court to make such an order.[9] [9]In this regard his Honour agreed with the view of O’Keefe J in MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 as to the scope of the jurisdiction. His Honour considered that the authorities established that at common law there was no property in a corpse, other than a mere right to possession for the purpose of ensuring prompt and decent disposal. He considered that this position was supported by the terms of s 236 of the Criminal Code 1899 (Qld). That section makes it a misdemeanour for any person to improperly or indecently interfere with or offer any indignity to any dead body or human remains without lawful justification or excuse. His Honour considered that s 236 of the Criminal Code could arguably be contravened by any interference with the body of a deceased to extract sperm. His Honour concluded, on the basis of his review of the authorities and s 236:[10]“It appears that the underlying principles of law are that those entitled to possession of a body have no right other than the mere right of possession for the purpose of ensuring prompt and decent disposal. The prohibition on interfering with a body sanctioned by the possibility of criminal prosecution indicates that to remove part of the body for whatever reason or motive is unlawful. The opinion expressed in Pierce which goes further than English authority is but a logical extension of it.”[10] At [18].

Ratio Decidendi

Legal Principle Established

There is nothing suggesting that the making of the declarations sought would be contrary to public policy. Whether the decision is a rational decision This is a matter which is relevant to the best interests of any child that may be conceived. Based upon the evidence of Ms Cresswell and her family, Joshua’s family, friends and the medical evidence, I am satisfied that Ms Cresswell’s decision to proceed with this application is rational and motivated by her wanting to have a child, specifically Joshua Davies’ child, and is not an irrational response to grief. As I have outlined, the evidence shows that before Joshua’s death, Ms Cresswell and Joshua Davies both held the desire to have children and had taken steps in that regard. Her desire to do so now is consistent with the plans that they had made but her evidence shows a realistic assessment of the difference in her situation now and the prospect of being a single mother. The NHMRC guidelines specifically provide for the ART clinic to be satisfied that sufficient time has passed so that grief and related emotions do not interfere with decision-making.Any non-compliance with the TAA I am satisfied that all parties concerned sought to act lawfully in relation to the removal of the sperm. To the extent that the provisions of the TAA were not complied with it appears to be due to a lack of understanding by the applicant as to their effect, in circumstances requiring urgent action. On the basis of the evidence before me, I am satisfied that the removal of the sperm was done with the authority of the court order, but also with the consent of the senior next of kin, the authority of a designated officer and at least without opposition from the Coroner, such that, like in Re Estate of Edwards, any failure to comply with the TAA was not the result of insurmountable hurdles. Given that the removal of sperm from Joshua Davies was sanctioned by an order of this Court, and the sperm was lawfully removed pursuant to that order, it was an act authorised by law.[196] To the extent that there was any non-compliance with aspects of the TAA, it was not the result of any deliberate flouting of important statutory provisions, nor is the order sought in the present case consequential upon that earlier order, albeit that the sperm the subject of the present application came into existence as a result, at least in part, of that order.[197] [196] AB v Attorney-General (2005) 12 VR 485 at [143] See also Re Estate of Edwards. [197]Given that there is evidence to suggest the procedure was authorised by a designated officer and the Coroner consented or directed his consent was not required. In the present case, the applicant has at all times sought to act lawfully in seeking the authority of this Court before taking any steps to implement her wish to become pregnant using the sperm of her late partner, Joshua Davies. In the circumstances, I am satisfied that any non-compliance with the TAA would not cause me to refuse the declaration. Exercise of discretion