Toowoomba bank clerk Ayla Cresswell might have entered the Supreme Court in Brisbane on Wednesday with trepidation, but she left smiling and flanked by her family as she prepared to celebrate the news that she can now legally begin IVF.
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On Wednesday, her two-year court battle came to an end as Justice Susan Brown delivered a ruling that the 25-year-old can now legally be inseminated with sperm from her late partner Joshua Davies and have the children they both talked about having.
The court heard that Joshua had sent a text to his friend in 2016 saying he would be happy if his then-girlfriend fell pregnant because “she was the one”.
He also discussed giving his parents, John and Ione Davies, a grandchild as soon as possible and talked about their marriage plans.
Ayla was just 20 when she met Joshua in 2013. They became friends and started a relationship six months after they met.
Like many young couples in love, they started planning their future. They’d begun saving for a house and had excitedly discussed marriage plans and having children. They’d even bought furnishings for the unit they rented together, taken out joint insurance and set up a shared bank account.
Both of them shared their happy plans with friends and family, many of whom provided affidavits to the court to confirm they were in a committed, loving relationship.
But three years later on August 23, 2016 tragedy struck when she found her beloved Joshua dead at their Toowoomba home.
On the day he passed away, a grief-stricken Ayla told the man she’d hoped would one day become her father-in-law, John Davies, that she “wished she was pregnant.”
John rang the Toowoomba Base Hospital to discuss what needed to happen if someone wishes to have a child of a deceased person.
The hospital advised they’d need a court order.
Ayla said she wanted to file the application and was immediately backed by John and wife Ione who were “in complete agreement” with her decision.
After that, things moved quickly.
To ensure there was viable sperm, an operation had to be performed within 24 hours’ of Joshua’s death.
This meant waking Supreme Court Justice Martin Burns in the early hours of August 24, 2016, to ensure the urgent application could be heard in time.
Justice Burns ordered Joshua’s testes and spermatozoa could be removed posthumously, and stored at the IVF clinic nominated by Ayla.
Until today, there were no clear precedents for Queensland women who wished to extract sperm from their late partner and use it in an attempt to have a child.
But today’s historic judgment from Justice Susan Brown, delivered in front of a packed courtroom, has changed the legal landscape.
In Queensland, unlike some other states, there is no legislation dealing with the use of removed sperm in circumstances where the donor is dead.
Ayla’s legal team, led by Kathryn McMillan QC, is the first in Queensland to successfully argue that although the human body is not capable of being owned or possessed, it can be the subject of “property rights”.
In her summary, Justice Brown agreed that “work or skill” was applied to remove and store the sperm such that it is “capable of being property”, and determined that Ayla was entitled to “permanent possession of the sperm.”
“I consider that Joshua Davies did intend to have children with Ms Cresswell prior to his death. There is no evidence that he objected to the use of his sperm by Ms Cresswell in the event of his death.
She added: “I am further satisfied that any child conceived will be loved and cared for by his or her mother, grandparents, extended family and close friends, and supported by them.
“While Ms Cresswell and Joshua’s family and friends will always feel his loss, I consider that sufficient time has passed since his death to enable Ms Cresswell and [family members] to rationally consider the implications of [Ayla] having a child in the circumstances.”
Deputy president of the Queensland Law Society Bill Potts said the ground-breaking case had raised important questions, and signalled the decision should now be looked at by lawmakers.
“We have to make sure that the law keeps up with technology and the developing morality around this area,” he said.
“The legal challenges are: family law. Is the child brought up with the father’s name? Is the child brought up in a particular religion or goes to a school that the grandparents would have access to?
“In terms of succession: does the child take or receive property belonging to the father.
“Whilst I’m sure [Ms Cresswell] is overjoyed, and she has every right to be, this is an area which is ripe for legislation.”
