On 20 June 2018, the Supreme Court of Queensland handed down a decision granting a young woman (Ms Creswell) to use her deceased partner's sperm for the purposes of reproduction.
Back in August 2016, Ms Cresswell bought an urgent application to the Supreme Court of Queensland the day after the death of her partner, seeking orders for the removal of the deceased's sperm and testes for the purposes of artificial insemination.
The Court considered whether section 22 of the Transplantation and Anatomy Act 1979 (Qld) ("Act') applied, and if it did, whether it authorised the removal of Mr Davies’ gametes. The Court concluded that section 22 of the Act does apply to the removal from a deceased person and that the requirements under the section were substantially met.
The Court also considered whether the deceased's sperm was property capable of being possessed. The Court held that a sperm removed from a deceased person is capable of constituting property, where work and skill has been exercised in relation to its removal, separation and preservation. Otherwise, a sperm could only constitute property where the separation from the body occurred while the donor was living and consented to the removal. It was noted by the Court that the sperm of a deceased, not removed while he is living, is not capable of property and does not form part of their estate upon death.