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A landmark court case in Queensland recently has allowed a woman the right to her dead partner’s sperm for the purposes of undertaking IVF treatment. The case mirrors a 2011 case in NSW, where a woman was also able to “claim” her late partner’s sperm.
Both cases have cast light on an area of “developing morality” in the area of family law and succession law which is “ripe for legislation”, according to Qld Law Society deputy president Mr Bill Potts.
“Never before in Queensland has the sperm of a dead person been allowed to be extracted and then used for the purposes of procreation,” he said.
Mr Potts said the new case highlighted the pressing need for legislation to keep up with technology. “In the last 10 years, the technology has developed where a baby can be born literally from a sperm extracted from a dead person. It is indeed an historic and very interesting decision that’s been made.”
In the earlier NSW case, Mrs Jocelyn Edwards had applied to the Supreme Court to “claim” her late husband’s sperm, with which she would then have IVF treatment. Her husband Mark had died suddenly aged 39, “the day before the couple were to sign consent forms to undertake IVF treatment”. In her Supreme Court application, Ms Edwards sought to make her dead partner’s sperm her “property”. The court ordered that she was entitled to possession of the sperm that had been recovered from her late husband’s body.
The new Queensland case similarly involves a partner who had died suddenly, and whose partner applied for the right to use her dead partner’s sperm to become pregnant. Joshua Davies and Ayla Cresswell had been in a relationship for three years, had been saving a house deposit and had planned to get married and have a family, when Joshua suddenly died.
Very soon after Joshua’s death, his parents had decided to support his girlfriend’s legal efforts to obtain and use his sperm: “In the early hours of August 24, 2016, Ms Cresswell instructed her legal representatives to file an urgent application to the court, seeking orders for the removal of sperm.”
The court granted permission for his sperm to be harvested around 48 hours after his death, and stored at an IVF clinic. Ms Cresswell now sought approval via the courts to be able to use the sperm.
She was successful, with the court agreeing with her legal team that “the way in which the sperm was removed meant it was capable of being classed as property”. The court found that the sperm was her property and further decided that Ms Cresswell was entitled to permanent possession of it.
The orders were made subject to several conditions, such as that Ms Cresswell “was the only person who had a relevant interest in the sperm and the practitioners who removed the sperm did so for her benefit”.
The court acknowledged that the child would not have the benefit of a father, but because Ms Creswell had the full support and blessing of both her family and her late partner’s family, her child would have support both from a paternal and maternal grandfather.
Whether in a de facto relationship or married, it seems clear that wives and girlfriends can successfully pursue the legal rights to their dead partner’s sperm — and it is expected that more cases like this will now be heard.
Source: Family Law Express
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