Family Law

Can Your Girlfriend Use Your Sperm After Your Death?

In Australia, the answer is now 'yes.'

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Last Wednesday, a court in Queensland, Australia said “yes” for Ayla Cresswell. Cresswell had been in a relationship with the now tragically deceased Joshua Davies for three years. Sadly, on the night of August 23, 2016, Cresswell returned to their home to find that Davies had taken his own life. The couple had been talking marriage and children, and Cresswell had even visited her doctor in the month before the suicide.  The doctor had confirmed that Cresswell was healthy and fit for pregnancy.

Urgent Retrieval. On the day of Davies’s death, Cresswell commented to Davies’s father, John Davies, that she wished she was pregnant. The elder Davies consulted with his wife, and they agreed to support Cresswell in an urgent request for a court order for the removal of Davies’s sperm. The court heard the case the next day (that’s Queensland justice!), and Davies’s sperm was retrieved within 48 hours of his death.  Forty-eight hours is generally understood as the cut of time for post-mortem sperm viability.

Permission For Use. Of course, retrieving and cryopreserving her beloved’s sperm was only the first step. Cresswell had a long road ahead of her. The next step was convincing the court that she should be able to use the sperm. Her attorney and the court emphasized that Cresswell’s petition was not merely the result of immediate grief from her partner’s death, but rather part of a bigger plan that the couple had had to grow their family. Indeed, before seeking the court’s ruling to use the sperm, Cresswell had undergone counseling, and allowed some time to pass.

Sperm Is Property, Right? In ruling in Cresswell’s favor, the court deemed the sperm to be property, and granted Cresswell permanent possession. However, the court required that Cresswell be the only person allowed to use the sperm. And any involvement by a medical provider in facilitating conception was at that provider’s discretion.

A Landmark Ruling. The judgment was a first for Queensland. Never before has a Queensland court authorized the use of posthumously retrieved sperm.  The court notes what unchartered territory it was treading. “There is no statutory regime in Queensland which apples to the use of posthumous sperm. There has been no consideration in Queensland of the Court’s jurisdiction to make orders as to whether a party is entitled to possess and use any sperm that has been removed.” So Cresswell broke some new ground down under.

Was This A Good Ruling? Renowned Australian solicitor Stephen Page told me it was, in his opinion, a very sound judgment. Of importance, the court did not order doctors to carry out treatment, but could act in their best judgment and on advice of their own counsel as to their own licensing requirements. The person who can use the sperm is narrow — only the deceased’s partner and no other person. “For example, there could not be use for her brother to use in a surrogacy arrangement.”

Page notes that this was not the first time sperm from a deceased man has been used in Queensland by a widow, and that there is a least one child born from the use of that sperm. Page did think it surprising that the High Court did not cite to Clark v. Macourt, which is established authority that sperm is merely treated as “stock” under Australian law.  Although I’m not an Australian attorney, I assume that refers to not the base of a soup, or cattle in Australia, but “property.” Like a pet kangaroo or a vegemite sandwich.

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What About The U.S.? Of course, tragedy strikes everywhere, and we have seen this scenario played out closer to home. The same obstacles arise here — legal uncertainty as to when gametes can be retrieved posthumously, and when they can be used. In a podcast interview with Dr. Betsy Cairo, the director of a U.S. sperm bank, she reiterated the importance of consent. Without written consent that the deceased not only wanted children, but specifically authorized his genetic offspring to be conceived after his death, her clinic, as well as others, would not believe themselves authorized to carry out such procedures.

I’m still not convinced that I like this ruling, given that Davies clearly didn’t anticipate starting a family with Cresswell at the moment when he took his own life. But frankly, with the deceased’s partner and all of their family openly supporting the move, the harm is likely minimal. So congrats to Cresswell. Don’t hesitate to send baby pics our way!

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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