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A Critique of Re Cresswell
AN ILLOGICAL DISTINCTION CONTINUED: RE CRESSWELL AND
PROPERTY RIGHTS IN HUMAN BIOLOGICAL MATERIAL
KATE FALCONER*
I INTRODUCTION
On 20 June 2018, the Queensland Supreme Court handed down Re Cresswell.1 This
decision saw Brown J apply a 110-year-old High Court authority to find property
rights in the spermatozoa removed from a deceased man nearly two years
beforehand.2 The decision in Re Cresswell was widely reported in local and national
media and the motivations of the young applicant, the deceased's surviving de facto
partner, were repeatedly questioned . Unsurprisingly, these somewhat sensationalised
media reports failed to note the importance of the Supreme Court's reasoning when
making the property rights determination.
The body of Australian case law dealing with the question of property rights in human
biological material is large and contradictory. Re Cresswell is the culmination of over
three decades of Australian jurisprudence on the issue and is notable for its
comprehensive and in-depth discussion of preceding decisions.4 Brown J's use of
precedent (more precisely, her Honour's favouring of one body of precedent over
another) is not without issue, however. After setting out the factual background to the
dispute in Part II, this article engages with Brown J's reasoning in Re Cresswell in
three key respects. Part III first describes Brown J's reasoning in reaching the
conclusion that the sperm at issue was capable of being the subject of property rights.
BA, LLB (Hons), University of Queensland; LLM, Washington University in St Louis; PhD
candidate, Australian National University College of Law. This research is supported by an
Australian Government Research Training Program Scholarship. A very big thank you to Sarah
Bishop and Alice Taylor for their helpful comments on an earlier draft.
1 [2018] QSC 142.
2 This article adopts the approach of Brown J in Re Cresswell and uses the more common term
Isperm' from this point: see ibid [1].
3 Discussing an earlier decision in the Cresswell litigation, one commenter on an online news
article, for example, suggested that Ms Cresswell was attempting to use her deceased partner's
sperm as 'a ticket to a single mothers [sic] pension': 'Woman's Plea to Use Dead Boyfriend's
Sperm for Baby', The Chronicle (online), 8 May 2017 <https://www.thechronicle.com.au/news
/womans-plea-use-dead-boyfriends-sperm-baby/3175108/>. Commenting on another article,
user aussieauld accused those involved in the application of attempting to 'replicate' the
deceased through a child: Belinda Cleary, 'Woman, 23, Wins the Right to Use Her DEAD
Boyfriend's Sperm to Start Their Family because It's What He Would Have Wanted', Daily
MailAustralia (online), 15 October 2016 <http://www.dailymail.co.uk /news/article3839221
/Toowoomba-woman-Ayla-Cresswell-wins-right-use-ate-partner-Joshua-Davies-sperm.htm>.
4 Within the particular context of sperm samples, previous cases include AB v A-G (Vic)
(Unreported, Supreme Court of Victoria, Gillard J, 23 July 1998); M4 Wv Western Sydney Area
Health Service (2000) 49 NSWLR 231; Re Gray [2001] 2 Qd R 35; Baker v Queensland [2003]
QSC 2; Re Denman [2004] 2 Qd R 595; AB vA-G (Vic) (2005) 12 VR 485; YvAustin Health
(2005) 13 VR 363; SvMinisterfor Health (WA) [2008] WASC 262; Bazleyv Wesley Monash
IVF Pty Ltd [2011] 2 Qd R 207; Re Estate of Edwards (2011) 81 NSWLR 198; Re H, AE [No 2]
[2012] SASC 177; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Exparte
C [2013] WASC 3; Roblin v Public Trustee (ACT) (2015) 10 ACTLR 300; Re Patteson [2016]
QSC 104.
[2019] No I](ViewImageLocal?handle=hein.journals/unswform2019&div=1&collection=&method=preview&ext=.png&size=3)
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