Sperm case will have ‘significant implications’
A QUEENSLAND woman has won her bid to become the first in the state to have her boyfriends' baby using sperm harvested after his death.
Toowoomba bank teller Ayla Belinda Cresswell was in the Supreme Court this afternoon where Justice Sue Brown gave her the green light to start a family using the sperm of her partner of three years, bricklayer Joshua Davies, nearly two years after his death.
Ms Cresswell won the right to harvest the sperm in August last year, just hours after Mr Davies died suddenly, but needed to return to court again to be allowed to use them for IVF.
Ms Cresswell could not follow the routine path to motherhood because tragedy struck on August 23, 2016, when she found her beloved defacto partner Joshua Davies dead at their Toowoomba home at 6.30am.
Within hours Ms Cresswell resolved to have his baby without him, to fulfil a dream they both had.
Ms Cresswell today hugged her parents, siblings and the family of her late fiancee in the Supreme Court, minutes after the judge ruled she can use Mr Davies' sperm in a bid to have a baby.
Ms Cresswell kept her composure as Justice Brown announced her ruling just after 2.45pm this afternoon, but as soon as court adjourned she turned around and showed her joy to her family seated in the public gallery.
The bank worker has been waiting to hear the decision since Justice Brown retired in September last year to rule on whether she would be allowed to "possession and use" of sperm collected from her fiance, just hours after he died, to undergo IVF.
Justice Brown today told the court that the IVF clinic must still "be satisfied" that Ms Cresswell meets their usual clinical guidelines before IVF can begin.
Ms Cresswell did not comment as she left court with her large group of supporters, family and friends.
The Attorney General appeared in the case and neither consented to nor opposed the application.
Speaking outside of court today Queensland Law Society senior counsellor and Law Council of Australia director Bill Potts told media that Ms Cresswell's case was a legal landmark.
"Never before in Queensland has the sperm of a dead person been allowed to be extracted and then used for the purposes of procreation, it is indeed an historic and very interesting decision that has been made," Mr Potts said.
He said the decision has significant implications for family law and succession law.
"Whilst the applicant is overjoyed, and she has every right to be, this area is ripe for legislation," Mr Potts said.
"In the last 10 years the technology has developed where a baby can be born literally from sperm extracted from a dead person.
"In these circumstances, while there are legal precedents for this, in these circumstances we have to make sure that law keeps up with both the technology and the developing morality around this area," he said.
"Is the child brought up with the father's name, is the child brought up with a particular religion, or goes to a (particular) school?" Mr Potts asked.
"Do the grandparents have access to the child, in terms of succession does the child take or receive property belonging to the father," Mr Potts posed.
Ms Cresswell's lengthy journey has set a legal precedent.
It was vital that the sperm was removed within 24 hours of Mr Davies' death for it to remain viable, so Supreme Court Justice Martin Burns was woken in the early hours of August 24, 2016, to be in court in Brisbane at 4.30am that day. It's unusual for the court to sit so early but in this case it was necessary.
Brisbane barrister Scott Lynch appeared before Justice Burns at the time, who was on duty to hear urgent matters, to present witness statements hastily mustered together by Ms Cresswell's legal team.
Justice Burns ordered Mr Davies' testes and any sperm be removed and held by an IVF provider, pending today's decision on whether Ms Cresswell can use it to try for a baby.
Ms Cresswell had submitted that she was physically, emotionally and financially capable of having and raising a child on her own.
"I believe that I am sufficiently affluent to be able to raise a child by myself," she told the court, saying she had bought her first home last year and had diligently saved to fund costly IVF treatment.
She also had the support of her family and of the Davies family.