Toowoomba woman applies for ownership of dead partner's sperm
WHO owns Josh Davies's sperm after his sudden death?
That is the question posed to Brisbane Supreme Court on Friday.
Toowoomba woman Ayla Belinda Cresswell and Mr Davies were in a relationship and planning to have three children before Mr Davies suddenly died in 2016.
At the time, Ms Cresswell, 24, got permission from a court to remove and freeze Mr Davies's sperm. On Friday, she applied to the court to use the sperm to become pregnant.
But, as Mr Davies was unable to give consent to the sperm being taken, there is a legal dispute over who owns the sperm after his death.
Ms Cresswell's lawyer Kathryn McMillan said the only other option was for the state to take possession of Mr Davies's sperm, which she described as an "absurd position”.
Ms McMillan said the sperm could not have been considered a possession while it was part of Mr Davies's body.
But she said the only person who could benefit from the sperm was Ms Cresswell.
"The only person who has a relevant interest in it is my client,” she said.
The court heard the Cresswell and Davies families support Ms Cresswell, and in an affidavit Mr Davies's mother offered to help raise any child if needed.
Barrister for the Attorney-General Soraya Ryan suggested the court could declare the sperm was Ms Cresswell's property but order it only be used for certain purposes to ensure it was used "ethically”.
But Justice Sue Brown said she was unsure if the supreme court had jurisdiction over the matter or if it should be considered in a Commonwealth court.
The court heard there was no Queensland legislation about the issue.
"The difficulty is this is not something that is really canvassed within our legal system to date,” Justice Brown said.
"The question is whether the court's jurisdiction enlivens where we have a gap.”
Justice Brown will hand down her decision at a later date.