The Court considered evidence regarding whether the sperm could be used for reproductive treatment. There was evidence presented that the deceased had a desire to have children with Ms Creswell. Further, in the best interests of any child born as a result of Ms Cresswell’s impregnation with the deceased sperm, Justice Sue Brown held that there were no factors that weighed against a claim that Ms Creswell should be entitled to possession of Joshua Davie’s sperm. Justice Brown accepted submissions made on behalf of Ms Cresswell that the way in which the sperm was removed meant it was capable of being classed as property:
“In my view, the weight of authority in the most recent cases in Australia and England supports the fact that the common law recognises that sperm removed from an individual, to which work and skill is applied so it can be preserved, is capable of being property”.
In Australia, since the late 1990s, single women have been allowed to access assisted reproductive technologies. However, there has been disagreement in case law around the states of Australia in respect to ‘sperm harvesting,” when women have applied to the courts to allow the removal of reproductive material from their deceased partner.
For example in 2011, Jocelyn Edward‘s applied to the NSW Supreme Court to “claim” her late husband’s sperm, in order to travel interstate to have pregnancy treatment, because NSW law required her to have written consent from the donor and this she did not have; her husband had died suddenly in a workplace accident.
Commenting on the Creswell case, Deputy-President of the Queensland Law Society, Bill Potts, said:
This is a landmark decision never before (seen) in Queensland; where the sperm of a dead person is allowed to be extracted and used for the purposes of procreation”; Potts added that this matter: “ has significant implications for family law and succession law. Whilst I’m sure (Ms Cresswell) is overjoyed and she has every right to be, this is an area which is ripe for legislation