Australian woman wins right to use dead boyfriend’s sperm

A Queensland woman has won the right to use her dead boyfriend’s sperm to have children after a judge ruled that she was confident any baby would be “loved, cared for and supported”.

Ayla Cresswell should be able to use Joshua Davies’ reproductive tissue, the Queensland supreme court justice Susan Brown said in Brisbane on Wednesday.

However, it was up to the particular medical clinic to decide if it was satisfied to go ahead with the procedure. Brown also ruled Cresswell was the only person entitled to use the sperm.

The young woman had been in a relationship with Davies for about three years when he killed himself in August 2016.

The pair were planning to get married and have children.

After his death, and with the support of Davies’ family, Cresswell sought an urgent court order to remove his sperm. She has been paying for its storage ever since while she waited for Wednesday’s ruling.

Brown agreed with submissions made on behalf of Cresswell that the way in which the sperm was removed meant it was capable of being classed as property.

She also said she was satisfied the doctors who removed Davies’ reproductive tissue did so on behalf of Cresswell and that as a result she was entitled to possess it.

Justice Brown had to take into account the wishes of her former partner in making her decision.

“There is clear evidence that Joshua Davies expressed a desire to have children,” she said in her judgment, adding that was different to him consenting to Cresswell using his sperm if he died.

“While Joshua Davies’ family and friends believe he would support the decision of Ms Cresswell to make this application … that is based on his express desires premised on them both being alive,” she said.

Ultimately she found there was no evidence to suggest Davies objected to Cresswell using his sperm or that it would be contrary to his wishes. Justice Brown said she was also satisfied the young woman’s decision was not “an irrational response to grief”.

“I am satisfied … any child which may be conceived as a result of the use of Joshua Davies’ sperm will be loved, cared for and able to be financially and emotionally supported, not only by Ms Cresswell but by the extended family,” she said.

Cresswell did not comment outside court but her barrister, Kathryn McMillan QC, said her client was relieved.