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Title:
The Postmortem Use of Sperm - Some Clarity at Last

Authors:
Professor Michael Lupton, Australia

Abstract:
The case of Re Cresswell [2018] QSC 142. dealt with an application by Ayla Cresswell for consent to use the gametes of her partner, Joshua Davies, who had committed suicide. The decision was a single judge decision handed down by Justice Anne Brown and was limited to the above issue. A major complication in deciding the case was the fact that Joshua Davies had not given clear instructions about the withdrawal and use of his gametes prior to his death. Where such consent is lacking a court must address the following three issues in its judgement.
(a) Retrieval of the gametes.
(b) Storage of the gametes.
(c) Use of the gametes.
1. Retrieval
Justice Brown made it clear in her judgement that the appropriate course to obtain consent for retrieval was not to embark on a Supreme Court application, but rather to follow the procedures set out under the Transplantation and Anatomy Act 1979 (Qld). If the death (Joshua's) fell within the jurisdiction of the Coroner, then it is the Coroner's consent which must be sought. Having obtained this consent, consent for the actual retrieval must be obtained from the senior available next of kin, which in this case was his partner Ms Ayla Cresswell.
2. Storage.
Queensland is one of the Australian States which does not have an Assisted Reproduction Act. This means that conditions for the retrieval and use of gametes is not regulated by statute but are instead, dealt with in terms of the National Health and Medical Research Council's (NHMRC) Ethical Guidelines, on the Use of Assisted Reproductive Technology and Clinical Practice and Research (2017).
In terms of these guidelines all IVF Clinics in Australia must comply with these guidelines. Justice Brown highlighted the fact that the assumption that a court order for removal was required in terms of the guidelines was fallacious, and that in fact, the court does not have jurisdiction in this matter. Application for retrieval is limited to the following:
(i) The deceased's spouse or partner.
(ii) The surviving spouse must intend to use the gametes for procreation purposes.
(iii) Evidence of positive support from the deceased to use his gametes must be forthcoming, as is consent from the surviving partner or spouse.
3. Posthumous Use.
Any clear evidence of objection to the posthumous use of his gametes must be respected.
If there is no evidence of objection to use of use of his gametes, then evidence of the partner's consent to the use of his gametes must be forthcoming as is the consent of the surviving partner or spouse.
4. Conclusion
It is submitted that in order to avoid the problems encountered in Cresswell's case, newly married couples should include all the necessary consents regarding the post mortem use of gametes in their wills.

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