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Woman in Prison Wins High Court Fight to Freeze Her Eggs

Joseph Friedman is About Time's Publisher and contributing writer.

The High Court on Wednesday
Joseph Friedman

The High Court of Australia on Wednesday ruled that a woman incarcerated in a Queensland prison should be allowed to freeze her eggs.

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In a unanimous decision, the High Court of Australia found that 36-year-old Rachel Smith should not be prevented from having her eggs extracted and frozen for the purposes of future conception, because the prohibition in the Corrective Services Act on “assisted reproductive technology” does not extend to the process of egg freezing.

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Australia’s highest court does not often take on cases that concern the rights of people in prison; rarely still does it find for the person in prison and against the corrections department.

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That the Court unanimously overturned the decisions of the Queensland Court of Appeal, the primary judge of the Queensland Supreme Court and the Chief Executive of Queensland Corrective Services is significant.

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The case concerned an application four years ago by a then 32-year-old Smith to have her eggs extracted and frozen in prison to preserve her future fertility. Smith will likely be released between the ages of 39 and 41, at which time – as all parties acknowledged – her ability to conceive will be significantly reduced.

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Smith has at all times committed to pay for the procedure, but s 22 of the Corrective Services Act prohibits any person in prison from receiving “assisted reproductive technology” while in prison, which the Chief Executive, in rejecting Smith’s request, said includes the process of egg freezing.

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The Queensland Supreme Court sided with the Chief Executive and rejected Smith’s challenge, ruling that “assisted reproductive technology” clearly includes the process of egg extraction and freezing. The Court of Appeal agreed, noting: “the only purpose for extracting and freezing [eggs] is to have them available for reproductive purposes in the future.”

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In an appeal to the High Court heard last month, Smith’s team argued that to interpret the phrase “assisted reproductive technology” so broadly that it includes any procedure assisting in reproduction would lead to an absurd result where basic procedures like vasectomy removal, treatment for endometriosis and egg extraction in cancer treatment would all be banned.

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The High Court on Wednesday agreed.

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In a unanimous decision across four concurring judgments, the Court explored the purposes of Queensland’s Corrective Services Act, which recognises that “every member of society including offenders has basic entitlements, and those not necessarily diminished because of imprisonment should be safeguarded”.

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The Queensland government has previously determined that the right to procreate in prison is necessarily diminished, but the Court found that Smith was not seeking to procreate in prison, but rather seeking to preserve her ability to procreate when leaving prison.

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The Court interpreted the phrase “assisted reproductive technology” as limited to technologies that directly assist with conception or reproduction, such as IVF, and found that it does not incorporate egg freezing, which is focused on preserving fertility.

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Taking into account Smith’s dignity, her special needs as a women with declining fertility and her basic entitlements to seek or receive medical treatment at her own cost to preserve her own fertility, the Court allowed Smith’s appeal and ordered the Chief Executive of Queensland Corrective Services to make the decision again according to the law that the Court has now established.

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This means that  Rachel Smith will now, in all likelihood, be allowed to have her eggs extracted and frozen while in prison.

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Justice does not move quickly, and Smith, who was 32 at the time she made the request, is now 36, with her fertility likely materially reduced already. Yet this is nonetheless a significant decision protecting the rights of people in prison and requiring corrections departments to focus on the purpose of corrective services in making decisions that affect those rights.

By About Time

There are many groups around the country that inspect prisons and provide feedback and recommendations to governments. These often involve visiting prisons and talking directly to people in custody.

This is what they’ve been up to in the last month.

ISSUE NO. 27
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3 MIN READ
By Denham Sadler and Rosie Heselev

Australia’s highest court will decide whether a woman in prison in Queensland should be allowed to freeze her eggs while she is incarcerated.

ISSUE NO. 27
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3 MIN READ
By About Time

Including suppression orders being banned for some offenders in VIC, good character to be scrapped in sentencing in WA, major changes made to remand processes in NSW and more.

ISSUE NO. 27
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4 MIN READ

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