A Toowoomba woman who launched a bid to become the first in the state to have her boyfriend’s baby using sperm harvested after his death has had her wish granted. Ayla Belinda Cresswell, asked the Supreme Court to give her the green light to start a family with her partner of three years, Joshua Davies, a year after his death. Cresswell won the right to harvest the sperm in August last year 2017, just hours after Davies died suddenly, but needed to return to court again to be allowed to proceed with IVF.
In the Brisbane Supreme Court last September, Justice Susan Brown was tasked with deciding if Ms Cresswell could use his sperm to have his children. During the September 2017 hearing, Justice Brown said she had to reserve her judgement because it was such a complex case, with nothing similar before in Queensland.
Her decision on in June 2018 considered Ms Cresswell’s ability to become a single parent based on her physical, emotional and financial status.
In her summary, Justice Brown acknowledged the support Ms Cresswell had from her family, and Joshua’s family, in particular his father John Davies and mother Ione Davies – both of who were in court for the judgment.
In granting the application, Justice Brown said she was satisfied that Ms Cresswell was acting with the support of Joshua’s family and her father, and “that it is not contrary to Joshua’s wishes if she has a child with his sperm.”
She added: “I am also satisfied that Ms Cresswell is acting responsibly and rationally and has taken appropriate steps to ensure that any child that may be conceived is financially and emotionally supported and that the extended family will support any child and Ms Cresswell.”
Deputy President of Queensland Law Society Bill Potts was in court for the judgement. “This is a landmark decision never before (seen) in Queensland; where the sperm of a dead person is allowed to be extracted and used for the purposes of procreation,” he said.
“It is indeed historic and very interesting decision being made, which has significant implications for family law and succession law. Whilst I’m sure (Ms Cresswell) is overjoyed and she has every right to be, this is an area which is ripe for legislation.
“We have to make sure that the law keeps up with technology and the developing morality around this area. “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.”
Today’s ruling means Ms Cresswell is legally entitled to be inseminated at an appropriate facility in Queensland.
Extracts from Brisbane Times article by – Alison Brown and Courier Mail article – by Vanda Carson