Legal Insights

Life after death: reflections on Re Cresswell

By Aaron Kloczko

• 25 June 2018 • 7 min read
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Cases like this invite us to undertake the impossible exercise of considering the best interests of a child who has not been, and may never be, conceived

Late last week, the Supreme Court of Queensland decided the case of Re Cresswell [2018] QSC 142, the latest in a small body of cases dealing with the posthumous extraction, and subsequent use, of gametes.

Cases of this kind are typically harrowing and deeply profound. Re Cresswell is no different.

The applicant, Ms Ayla Cresswell, was in a committed relationship with Mr Joshua Davies who – without any apparent warning or an obvious trigger – took his own life. With the support of Mr Davies’ family, Ms Cresswell made an urgent application to the Court seeking orders for the removal of his testes and sperm. That order was granted and the tissue removed and provided to an IVF clinic in Queensland for preservation pending a further application to the Court.

Cases of this kind are – of course – typically held on an urgent basis. Whether for this reason, or simply because of the inherent complexity of the issues before the Court, the authorities to date have often been wildly divergent. That a further application to the Court was required meant that judgment in Re Cresswell was delivered nearly two years after Mr Davies’ death. Justice Susan Brown’s judgment – in a considered, academic fashion – brings many of those divergent authorities together and will likely light the path for courts hearing cases of this kind in the future.

It has been quite clear that the parens patriae jurisdiction of the Court – an ancient jurisdiction of the Court derived from the Sovereign’s obligation to protect those who cannot protect themselves – provides no basis to authorise the removal of gametes from a deceased person. Leaving aside the question of whether the Court has an inherent jurisdiction to authorise removal of gametes on some other basis, authority to remove gametes from a deceased person generally requires consideration of human tissue legislation (in Queensland, the Transplantation and Anatomy Act 1979 (Qld)).

Much of the decision in Re Cresswell is dedicated to considering whether section 22 of the Transplantation and Anatomy Act 1979 (Qld) applied and, if it did, whether it authorised the removal of Mr Davies’ gametes. In highly abbreviated summary, section 22 provides authority for removal of tissue from a deceased person for ‘therapeutic purposes’ or ‘medical or scientific purposes’ with the consent of the senior available next of kin provided that the deceased had not, during his or her lifetime, expressed an objection to the removal.

Justice Brown concluded that section 22 does apply to the removal of sperm from a deceased person. A particular consequence of that finding is that where section 22 authorises removal, authorisation of the Court is not required. On the question of whether section 22 authorised removal of Mr Davies’ gametes in the particular circumstances, Justice Brown – in the absence of relevant evidence – was not satisfied that the removal strictly complied with the legislative requirements. However, her Honour was more readily satisfied that there were ‘no insurmountable hurdles’ to compliance.

The conclusion on the application of the Transplantation and Anatomy Act leaves open the question of whether the Court can order the removal of gametes from a deceased person absent specific legislation. However, Justice Brown was prepared to say – without finally deciding – that her analysis of the authorities does not support the existence of a common law principle authorising removal.

Establishing authority to remove gametes from the deceased is only the first step. It must then be established whether there is authority to use the gametes in an assisted reproductive technology (ART) procedure. Again – absent specific statutory authority – we must look to the jurisdiction of the Courts. Like several of the cases before it, Re Cresswell was considered and decided by examining the issue as a matter of property law.

Courts have always approached questions of property in human tissue with deference and caution. There is a long-standing principle of common law that a person can be the holder of a property right but never the object of it. That principle – deeply grounded in the universal consensus about the abhorrence of slavery – is uncontroversial when applied to the body of a living person. Things become significantly more complicated when considering human tissue (including gametic material) extracted from the body for medical or scientific purposes.

Consistent with several of the authorities before her, Justice Brown found that sperm removed from the deceased is capable of constituting property (applying the now 110-year-old principle in Doodeward v Spence (1908) 6 CLR 406 that human tissue is able to become property by the application of work and skill). As the relevant work and skill was applied by laboratory staff as ‘agents’ for Ms Cresswell, she was entitled to possession of her deceased partner’s sperm (to the exclusion of others).

In many respects, Ms Cresswell establishing proper legal authority to remove and posses her deceased partner’s gametes is only a starting point. It merely establishes her legal right to take her deceased partner’s gametes to the ART clinic of her choice. Once at the clinic of her choice, she enters a environment with its own specific regulations and ethical guidelines.

ART providers in Australia are required by Commonwealth law to be accredited by the Reproductive Technology Accreditation Committee (RTAC) of the Fertility Society of Australia. Compliance with the NHMRC Ethical guidelines on the use of assisted reproductive technology in clinical practice and research is a condition of RTAC accreditation. Since their last revision in 2017, the NHMRC guidelines allow the posthumous use of gametes by the surviving partner without express consent. The guidelines require only that there be ‘some evidence that the [deceased] would have supported the posthumous use of their gametes by the surviving partner, or at the very least, there is no evidence that the [deceased] had previously expressed that they do not wish this to occur.’

Importantly, in Ms Cresswell’s case, the issue arose for consideration under Queensland law. Unlike several other States, there is no specific legislation in Queensland that prohibits the use of a person’s gametes after death. Provided that Ms Cresswell’s chosen ART clinic in Queensland is satisfied that the use is consistent with NHMRC guidelines, there is no other apparent legal impediment to the use of her deceased partner’s gametes in an ART procedure.

It is difficult to approach a case like Re Cresswell as a dispassionate, analytical exercise. Cases like this are premised on tragedy. They require us to divine the thoughts of the deceased and they invite us to subjectively experience and understand the grief of the surviving partner whose love and devotion for her departed partner would see her have, and raise, their child in his absence.

Cases like this invite us to undertake the impossible exercise of considering the best interests of a child who has not been, and may never be, conceived.

We instinctively want to consider cases such as this through the familiar, comforting lens of ‘consent’ or what the deceased ‘would have wanted’. The difficulty is that what the deceased ‘would have wanted’ is often completely unknowable and can only be inferred. In this case – like others before it – there was ample and uncontradicted evidence of the desire of the couple to have and raise children together. However, the desire to have a child with your partner while living is starkly different to a desire for your gametes to be used to have a child after your death.

I’ve been thinking about Re Cresswell for days. I don’t think it is going to leave my thoughts for a while yet.

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By Aaron Kloczko

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