RMB Articles

Law is Keeping up with Advances in Medical Technology

Posted 02-10-2018
Written by admin 101
Category Compensation

Advances in medical science are changing the way we view ownership of bodily tissue.

The law surrounding ownership of bodily tissue has been a long-debated topic, gaining traction in the early 19th Century with the rise of the anti-slavery movement.

Slavery was abolished in the later half of the 19th Century, which led to a significant legal question: “Can body parts be owned?”

Early responses were cautious, however with modern technological advances that question is more important now than ever before.

Without increasingly favourable interpretation of laws surrounding bodily tissue, it is probable that significant advancements in medicine would not have been possible. Similarly, without the law evolving, members of the community would also be negatively impacted in areas such as organ donations and transplants and In Vitro Fertilisation (IVF) technology for aiding conception.

A recent case in the Queensland Supreme Court has taken those notions one step further by allowing sperm from a deceased person to be used for reproduction.

Ayla Cresswell was in a relationship with Joshua Davies when he tragically passed away at the age of 23. Ms Cresswell sought to have Mr Davies’ sperm stored and used through IVF treatment to fall pregnant.

The Court considered a number of factors in Ms Cresswell’s case. Firstly, it was noted that Ms Cresswell was not purely reacting out of grief. In fact, Ms Cresswell had taken a number of conscious steps to determine whether to proceed with IVF, including undertaking fertility tests.

Secondly, strong consideration was given to the fact that the couple had discussed “settling down” and beginning a family before Mr Davies’ untimely passing. This was paired with the fact that she was supported by Mr Davies’ family in seeking an Order from the Court to use his sperm in that manner.

Ultimately, it found that Ms Cresswell had the right to use Mr Davies’ sperm for the intended purpose, but that the relevant medical clinics needed to satisfy themselves before carrying out the procedure.

The case is an example of how the law adapts to circumstances - maintaining a balance between protecting the community’s interest and protecting the individual’s rights.

There is no doubt that a loophole has now been opened, which will be exploited. However, the Courts will now be charged with adapting to the legal landscape to both enable further progress to be made and prevent exploitation.

Have you ever experienced this or are you concerned about a similar situation to yourself or a family member? You can contact us. We'll be able to help you via a quick phone call, or ask us a question via email.