Woman wins right to dead boyfriend’s sperm

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Jocelyn Edwards & Mark Edwards


Back 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 prevented her from having an IVF baby without written consent from the donor.

Mr Edwards, 39, died after falling from a balcony the day before the couple were to sign consent forms to undertake IVF treatment.

Ms Edward’s lawyers sought an application in the NSW Supreme Court for it to make her husband’s sperm her property.

In that case, the Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.

In an eerily similar case yesterday, a Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby.

Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested.

Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic.

The court heard Ms Cresswell and Mr Davies were in a relationship for three years, were saving for a house and planning to get married and have a family.


Ayla Cresswell & Joshua Davies

The judgement said Mr Davies “without any apparent warning signs or any obvious trigger, took his own life” and had sought help for depression.

On the day of Joshua’s passing, Ms Cresswell told Mr Davies’ father, John Davies, that she wished that she was pregnant.

John Davies spoke with his wife Iona Davies and they decided to support Ms Creswell gaining a court order.

The early hours of August 24, 2016, Ms Cresswell instructed her legal representatives to file an urgent application to the court, seeking orders for the removal of sperm.

Mr Davies’ sperm was removed some 48 hours after his death.

Justice Brown said she agreed with 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.

The court previously heard Ms Cresswell had the full support and blessing of Mr Davies’ family as well as her own, and several of Joshua’s friends provided affidavits that shortly before his death, he expressed a desire to settle down and have children.

Last year, Ms Cresswell’s lawyer Kathryn McMillan QC told the hearing the passage of time was important.

“She’s thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive.”

The court made the orders subject to a number of conditions, including that Ms Cresswell was the only person who had a relevant interest in the sperm and the practitioners who removed the sperm did so for her benefit.

The court further decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it.

Ms McMillan said while the child would not have the benefit of a father, there was support from a paternal and maternal grandfather.

Queensland Law Society deputy president Bill Potts said it was a “landmark decision”.

“Never before in Queensland has the sperm of a dead person been allowed to be extracted and then used for the purposes of procreation,” he said.

“It is indeed an historic and very interesting decision that’s been made, which has significant implications both for family law and for succession law.”

Mr Potts said legislation needed to keep up with the technology and “developing morality” around this area.

“Whilst I’m sure the applicant is overjoyed and she has every right to be, this is an area which is ripe for legislation,” he said.

“In the last 10 years, the technology has developed where a baby can be born literally from a sperm extracted from a dead person.”

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Categories: Donor-Conceived Children, Medical, Medical Decisions, Medical procedures, Special Medical Procedure, Succession Laws
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