Australian court rules prisoner can freeze her eggs

The High Court of Australia has ruled that a prisoner can apply to freeze her eggs while in custody, because egg freezing does not qualify as 'assisted reproductive technology'.

Rachel Smith sought permission from Queensland Corrective Services (QCS) to undergo self-funded egg freezing while in prison. Her application was refused in 2024 under Section 22 of Queensland's Corrective Services Act 2006, which prohibits prisoners from participating in or applying to access 'assisted reproductive technology'. Smith challenged the refusal, arguing that egg freezing preserves fertility rather than directly enabling reproduction.

'Properly construed, the phrase "assisted reproductive technology" includes only technology that directly assists with conception or reproduction,' acting Chief Justice Michelle Gordon and Justice Robert Beech-Jones explained in their judgment. 'It does not include egg extraction and freezing, which involve technology that assists to preserve fertility.'

Smith, who is serving a ten-year prison sentence for drug trafficking, will be 39 when she is eligible for parole, and her sentence will expire when she is 41. The High Court acknowledged that Smith was likely to suffer from age-related decline in fertility before her release.

After unsuccessful appeals to both the Supreme Court of Queensland and its Court of Appeal, Smith appealed to the High Court of Australia. Five High Court judges have now unanimously allowed her appeal, finding that the lower courts misinterpreted the legislation.

The judges distinguished between preserving the possibility of future pregnancy and undergoing treatment to conceive while in prison. They reasoned that extending the prohibition to fertility preservation would effectively restrict prisoners' reproductive choices beyond their imprisonment, contrary to the legislation's purpose of safeguarding their basic entitlements, dignity and individual needs.

The Court overturned QCS's refusal and ordered the authority to reconsider Smith's application. However, the ruling does not automatically authorise the procedure. Approval remains subject to meeting statutory requirements, including Smith's ability to pay and the availability of her nominated healthcare practitioner.

Justice Jayne Jagot emphasised that Smith had already lost valuable time pursuing her application and urged the chief executive of QCS to decide it 'as soon as reasonably possible'.

Smith's lawyer, Andrew Owens, welcomed the decision, telling ABC News that 'obviously you lose your liberty when you go into custody, but perhaps not losing other rights like the right to have a baby in the future.'

QCS said it was 'reviewing the judgment and would reconsider Smith's application in accordance with the Court's orders.'