The recent Queensland Supreme Court decision in Re Cresswell1 (Cresswell) is an important landmark in the body of Queensland case law that addresses the issue of whether post-mortem sperm retrieval should be permitted for reproductive purposes.
The reasoning outlined in the judgment has future significance, not only in terms of its impact on the regulation of assisted reproductive technology (ART), but also concerning the applicability of human tissue legislation to the removal of tissue more generally from deceased persons, and the nature of property rights in human tissue.
The Cresswell case therefore has practical implications for a range of stakeholders, including:
- hospitals that might be asked by family members to remove and/or preserve tissue following the death of a relative;
- clinics and centres that provide ART services, such as in vitro fertilisation (IVF); and
- the State – in determining the future direction of regulation, including policy and potentially, legislation.
THE ISSUES OF RELEVANCE IN CRESSWELL
The Creswell case concerned an application made by a woman who wished to conceive a child with sperm retrieved from her deceased partner.
In August 2016, following the death of Ms Cresswell's partner, an order was made by the Queensland Supreme Court authorising the retrieval of sperm for potential future use in an ART procedure. The order was made with the condition that Ms Cresswell obtain the Court's approval before seeking to use the sperm in an ART procedure.
In the judgment, Justice Brown held that the retrieval of the sperm in 2016 and its continued storage was lawful. Her Honour relied upon the human tissue legislation in reaching this conclusion. Additionally, the lawfulness of the retrieval, continued storage, and future potential use of the sperm were supported by a recognition that Ms Creswell had a proprietary interest in the sperm.
The judgment supported Ms Creswell's decision to conceive a child using the deceased's sperm, but emphasised that the question of use is to be determined by the ART clinic, with reference to the national ethical guidelines on ART published by the National Health and Medical Research Council (NHMRC).
THE RETRIEVAL OF TISSUE FOLLOWING DEATH
The retrieval of tissue from a deceased person in Queensland must either be permitted under the legislation or authorised by a court order to be rendered lawful.
In Queensland, the Transplantation and Anatomy Act 1979 (TAA) determines the circumstances when tissue can be lawfully retrieved following death. Section 22 of the TAA permits a 'designated officer' within a hospital to authorise the retrieval of tissue from a deceased person for therapeutic, medical, or scientific purposes.
However, this is conditional on either:
- prior to death, the deceased giving consent to such retrieval; or
- the senior available next of kin authorising the removal of tissue (providing there is no known objection by the deceased to removal of the tissue).2
It is a criminal offence to remove tissue3 in circumstances that fall outside the legislation, unless there is some other lawful justification (such as a court order authorising the retrieval of tissue).4
The Cresswell decision adopts a broad interpretation of the provisions in the TAA. Previous Queensland cases have not relied upon the TAA to determine the lawfulness of post-mortem sperm retrieval. However, Brown J held that the retrieval of sperm for use in an ART procedure constitutes a 'medical' or 'therapeutic' purpose within the meaning of section 22 of the TAA.
The decision emphasises that because of this interpretation, court authorisation is not required in such circumstances. This aspect of the decision has practical significance to hospitals that might be asked to retrieve reproductive tissue from deceased persons for use in an ART procedure – suggesting that this falls within the realms of the process overseen by the designated officer. The broad interpretation of the permitted purposes for tissue retrieval under the TAA may also be relevant to other types of tissue moving forward.
A NEED TO REVIEW THE FUTURE REGULATORY CONTEXT?
The determination that the TAA provides the lawful basis for sperm retrieval following death has important implications for regulatory policy in Queensland.
In Cresswell, Brown J disagreed with guidelines published by the Queensland Government that mandate obtaining court approval prior to the removal of sperm from deceased persons. Her Honour stated that court authorisation is not required, raising the question of whether the provisions in the TAA require legislative review or amendment, given the broad interpretation that those terms have been given. In the context of an ART regulatory framework based largely on policy rather than legislation,5the decision brings into focus the question of whether it is timely to introduce legislation relevant to ART practices.
The impact of the Cresswell decision on the IVF and ART sector also requires consideration. The NHMRC ART guidelines apply as part of the regulatory framework in Queensland, in terms of setting minimal standards of ethical practice. ART clinics are required to adhere to the guidelines as a condition of obtaining and maintaining accreditation. Clinics involved in facilitating the collection of sperm from deceased persons will need to carefully consider their obligations under the NHMRC guidelines.
Despite Brown J's conclusion that court approval is not required, the 2017 updated NHMRC guidelines impose the requirement for clinics to obtain an appropriate court authority prior to facilitating the collection and storage of sperm from a deceased person. It is important to note that at the time the Court was initially asked to determine whether the retrieval of sperm from Ms Cresswell's partner was permitted, the previous version of the NHMRC ART guidelines in force at that time did not require court approval.
While the decision in Creswell suggests that future applications to the Supreme Court are not necessary in these circumstances, ART clinics involved in the collection and/or preservation of sperm in future cases will need to balance their obligations under the NHMRC guidelines in light of the decision in Cresswell.
1 QSC 142
2 See Transplantation and Anatomy Act 1979 (Qld), ss 22, 23 and 24.
3 Under the Act, 'tissue means— (a) an organ, blood or part of— (i) a human body; or (ii) a human foetus; or (b) a substance extracted from an organ, blood or part of— (i) a human body; or (ii) a human foetus; but does not include— (c) immunoglobulins; or (d) laboratory reagents, or reference and control materials, derived wholly or in part from pooled human plasma.
4 Transplantation and Anatomy Act 1979 (Qld), s 48.
5 Although there is legislation that regulates surrogacy: Surrogacy Act 2010 (Qld)
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