In the News: Landmark rights granted

The Brisbane Supreme Court has been in the news recently because of a landmark decision where a Toowoomba based woman has been granted the right to use the sperm of her deceased partner to make a baby.

Ayla Cresswell had been in a relationship with Joshua Davis for three years and like many couples, they had goals and aspirations about getting married, buying a house and starting a family.
Sadly, Mr Davies took his own life in 2016 without any apparent warning signs.

After speaking to his parents following the incident about how she wished she was pregnant, Mr Davies parents decided to help Ms Cresswell get an urgent court order for removal of sperm, which was approved and removed approximately 48hrs after Mr Davies passed away.




The court had heard about Ms Cresswell having the full blessing and support from both Mr Davies and her own family  for this, as well as the support of a lot of Mr Davie's friends who provided evidence that they were aware of his desire for children.

'Joshua told me that he was very excited at the prospect of being a father, and we often talked about having children, and the effect it would have on our lives,' Ms Cresswell told the court.

In one of my favourite comic books 'Strangers in Paradise' - there's a similar sort of situation in which David is revealed to be dying. He recently got together with Casey - who had been pining after him for years. She is devastated and worried that with him gone, she may forget the sound of his voice. She wants to give him a child who can grow up to learn how wonderful her father was but due to past issues, she's unable to conceive a child. Their mutual friend and protagonist Katchoo readily volunteers for the job so the child will be born out of their mutual love. 

So obviously it's a little different but you get what I mean. This child represents a legacy, and a fulfilment of the life the couple dreamed of together but now can't accomplish side by side. I think it's normal to wish for something like that, especially in the wake of something so tragic. 

That said, this isn't an immediate grief reaction. It's something they've looked into - the storage, IVF treatments, the works, and of course all being paid for by them. 

The court has agreed to the use of the sperm so long as certain conditions were met, such as Ms Cresswell being the only interested party.

Queensland Law Society's 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 both 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 been born literally from a sperm extracted from a dead person."

This part is obviously quite important. In the Daily Mail link below there are a number of positive, and negative responses.. which, you know, it's the Daily Mail. Their comment section is like a bathroom graffiti wall at times. 

The majority of 'Cons' were 

• Upset that the donator had no say in it and were concerned that this could set a dangerous precedent for living couples who have split up, for example. 
• Annoyed that Ms. Cresswell wanted to do this instead of just finding someone else (some thought she would re-partner anyway and then treat any children she may have as second rate to this new partner) or 'go travelling because she's young' considering her choice to be selfish in nature.
• Saying that they think the couple weren't together long enough or that this could just be part of the grieving process/too soon. 

While the 'Pros' were

• Several children grow up without a father in their lives for various reasons. Or they may have both parents but are treated badly. The important thing is that the child is loved and cared for. 
• Comments stating this shows how much she loved him
• People offering best wishes and hoping the deceased's partner's parents stay involved. 

A lot of the comments were horrible to read and I hope the people involved in this don't ever have to come across people in real life spewing this vile nonsense at them. Personally, I don't think this is going to change the law for the worse, in this case obviously the parents and friends had input that was as weighty as the main applicant's reasoning. If the parents objected, I have no doubt that this request would not have been granted. 

Likewise, the people freaking out about an ex-partner suing for rights to your eggs/sperm or someone you just started dating assuming they have rights to this if you immediately pass away.. I don't think this would ever come to pass. This case was the landmark one, the first one so naturally the kinks in the law and any loopholes will be sorted out if another case rolls around. 

I hope everything goes well for Ms Cresswell - she's going to have an emotional journey ahead of her but it sounds like this is what she really wants and I'm sure she'll do her best with whatever life throws at her.

References:

Toowoomba woman wins court bid to use her dead boyfriend's sperm to have a babyBy Ashleigh Stevenson and Laura Gartry 20/06/2018 ABC News 

Woman, 23, wins the right to use her DEAD boyfriend's sperm to start their family because 'it's what he would have wanted'

By Belinda Cleary 15/10/2016 Daily Mail Australia