Re Creswell – Posthumous Sperm Removal Upheld by Court
Wednesday, July 18, 2018
In the recent case of Re Creswell, the applicant successfully sought permission from the court to obtain sperm from her deceased partner. Her intention was to use the sperm to fall pregnant.
Ms Creswell (the applicant) had been in a long term relationship with a Mr Davies, who tragically took his own life in 2016. Following Mr Davies’ death, Ms Creswell brought an application to have Mr Davies’ sperm posthumously removed and stored. The court had to determine whether or not Ms Creswell was entitled to possession of the sperm.
The first issue the court had to determine was whether or not the sperm’s removal was subject to the Transplantation and Anatomy Act (TAA) and, if so, whether or not the Act was complied with. It was held that the Act did apply and despite it not being technically complied with, the court was satisfied that the important substantive procedures had been completed.
The court then had to determine whether sperm is capable of being considered ‘property’. Human tissue, which includes sperm, has typically been considered property by courts only where it has been removed from a person’s body through the ‘lawful exercise of work and skill’ - for example, a doctor or nurse removing skin tags or suspicious moles in the confines of a medical practitioner’s office. But could this apply to a deceased person?
The court determined that if medical staff performed the removal of the sperm it would technically satisfy this criterion, and therefore the sperm was considered to be ‘property’. Finally, taking into account a number of discretionary factors, the court determined that Ms Creswell was entitled to possession of the sperm.
In concluding the judgment, the court noted the complex and developing nature of the law on sperm ownership and foreshadowed future law reform on the issue.