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Australian woman wins right to use dead partner's sperm

25 June 2018
Appeared in BioNews 955

A Queensland woman has won the right to use her dead boyfriend's sperm to have a baby. 

The ruling sets a legal precedent in Queensland for women wanting to use the sperm of their late partners to have children. It is currently illegal in Queensland for a man's sperm to be harvested, stored or transported without his written consent. 

Brisbane Supreme Court Justice Sue Brown made her landmark decision on Wednesday, ruling that any baby would be 'loved, cared for and supported'.

Ayla Cresswell and Joshua Davies had been together three years when he died suddenly at their home in August 2016. Within hours of his death, the court granted permission for his sperm to be harvested at Cresswell's request, which was supported by Davies' parents. 

Cresswell subsequently sought approval from the court to use the sperm, which has been stored at a fertility clinic since it was harvested almost two years ago. 

In the hearing held last September, barrister Kathryn McMillan QC, who represented Cresswell, explained how the couple had previously discussed settling down and starting a family.

McMillan emphasised that Cresswell was supported by both her own and Davies' family, and was not purely motivated by her initial grief.

'She's thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive,' McMillan said.

Given the complexity of the case, and the opposing concerns regarding the rights of a dead person and possession of the sperm, Justice Brown did not make her final decision until last week. 

The final order was made subject to conditions – including that Cresswell was the only person who could use the sperm, and that it would be up to the doctors and clinic to decide if they were happy to go ahead with the procedure.

Queensland Law Society's deputy president Bill Potts said it was a landmark ruling in fertility law but cautioned that further legislation would be necessary to ensure subsequent rulings kept up with technological and scientific advances.

'We have to make sure that the law keeps up with technology and the developing morality around this area,' he said after the hearing. 

Australian woman wins right to use dead boyfriend's sperm
The Guardian |  20 June 2018
Queensland woman wins right to use dead boyfriend's sperm
Brisbane Times |  20 June 2018
Toowoomba woman wins court bid to use her dead boyfriend's sperm to have a baby
ABC News |  20 June 2018
23 July 2018 - by Dr Alexander Ware 
A UK judge has granted permission for a woman to have her dying husband's sperm harvested, to use in an attempt to conceive following his death...
19 February 2018 - by Georgia Everett 
A woman in India has used the frozen sperm of her dead son in order to have grandchildren via a surrogate...
6 February 2017 - by Antony Starza-Allen 
The parents of a deceased Israeli man have had their request to use his sperm rejected on appeal...
24 October 2016 - by Antony Starza-Allen 
A woman in Australia has been given permission by the Queensland Supreme Court to extract sperm from her boyfriend after his sudden death...
11 July 2016 - by Kriss Fearon 
A couple whose daughter died of cancer, leaving frozen eggs in storage, has recently won the right to have their request for export reconsidered by the HFEA. There are a number of troubling features of the case which deserve proper scrutiny...
4 July 2016 - by Emma Nottingham 
The case of Samantha Jeffries - a widow who is trying to save the embryos she created with her husband before his death - holds lessons both for fertility clinics and for the HFEA...
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