1: Re Cresswell [2018] QSC 142 | June 20, 2018

Court or Tribunal: Supreme Court of Queensland
Catchwords: Assisted Reproduction, In Vitro Fertilisation, Parens Patriae, Posthumous Sperm Donation, Sperm Donation, Succession
Judges:  Brown J


Background: A Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby. Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested. Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic. 
 
  [Legal Issue]The court decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it. Ms McMillan said while the resulting child would not have the benefit of a father, there was support from a paternal and maternal grandfather.   [Court Orders]The applicant is entitled to possession and use of the spermatozoa to facilitate pregnancy and the Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction.     


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2: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 | May 23, 2011

Court or Tribunal: Supreme Court of NSW
Catchwords: Posthumous Sperm Donation, Rights of Executors and Administrators, Sperm Donation, Succession
Judges:  R A Hulme J


Background: What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child? Ms Jocelyn Edwards seeks a declaration that she, as the administrator of the estate of her late husband, Mr Mark Edwards, is entitled to possession of sperm that was extracted from his body shortly after his death. Although there is no direct evidence, the clear and only inference is that she desires to have a child with the aid of assisted reproductive treatment. 
 
  [Legal Issue]Ms Edwards argued that, as the administrator of her late husband's estate in relation to the disposal of his body, she has a right to possession of any part thereof and no other party has a superior right. The Attorney General however argued that there is a right of property, but the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.   [Court Orders]The Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.      


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