Australian woman wins right to use dead partner's sperm

A Queensland woman has won the right to use her dead boyfriend's sperm to have a baby. 

The ruling sets a legal precedent in Queensland for women wanting to use the sperm of their late partners to have children. It is currently illegal in Queensland for a man's sperm to be harvested, stored or transported without his written consent. 

Brisbane Supreme Court Justice Sue Brown made her landmark decision on Wednesday, ruling that any baby would be 'loved, cared for and supported'.

Ayla Cresswell and Joshua Davies had been together three years when he died suddenly at their home in August 2016. Within hours of his death, the court granted permission for his sperm to be harvested at Cresswell's request, which was supported by Davies' parents. 

Cresswell subsequently sought approval from the court to use the sperm, which has been stored at a fertility clinic since it was harvested almost two years ago. 

In the hearing held last September, barrister Kathryn McMillan QC, who represented Cresswell, explained how the couple had previously discussed settling down and starting a family.

McMillan emphasised that Cresswell was supported by both her own and Davies' family, and was not purely motivated by her initial grief.

'She's thought about it, had counselling, gone through many hoops, and had many tests to see if she can conceive,' McMillan said.

Given the complexity of the case, and the opposing concerns regarding the rights of a dead person and possession of the sperm, Justice Brown did not make her final decision until last week. 

The final order was made subject to conditions – including that Cresswell was the only person who could use the sperm, and that it would be up to the doctors and clinic to decide if they were happy to go ahead with the procedure.

Queensland Law Society's deputy president Bill Potts said it was a landmark ruling in fertility law but cautioned that further legislation would be necessary to ensure subsequent rulings kept up with technological and scientific advances.

'We have to make sure that the law keeps up with technology and the developing morality around this area,' he said after the hearing.