A Brisbane prisoner serving a 10-year sentence has been refused permission to preserve her eggs so she can try to conceive when released.
Drug trafficker Rachel Smith’s application under Section 22 of the Corrective Services Act 2006 (Qld) for approval to undergo oocyte preservation was refused by the Chief Executive of Queensland Corrective Services, on the grounds the section prohibits a prisoner from participating or applying to participate in assisted reproductive technology.
In her appeal to the Supreme Court, the 33-year-old inmate – who will be 41 on release if she serves the whole term, or 39 if released on parole – argued the section prevented women from undergoing assisted reproductive technology procedures that could result in pregnancy during their custodial term, and that oocyte cryopreservation was not one such procedure.
She argued her interpretation was consistent with the Human Rights Act 2019 (Qld), referring specifically to Section 30 (the right for all persons deprived of liberty to be treated with humanity and respect for the inherent dignity of the human process) and Section 37 (the right of every person to have access to health services without discrimination).
In his decision delivered on Wednesday, Justice Sullivan said the real question in this proceeding was: is the extraction and freezing of a female’s eggs within the meaning of “assisted reproductive technology” on the proper construction of s 22(2) of the CS Act?
He said the medical evidence established a reduction in fertility with age as well as an increased risk of abnormalities. The evidence also established that the extraction and freezing of a female’s eggs between the ages of 33 and 35 could reduce the risk of age-related infertility and abnormalities, he said.
Ms Smith would require a series of injections, then a medical procedure to extract the eggs, with the process repeated two to three times.
Justice Sullivan found the ordinary meaning of “assisted reproductive technology” included the process of egg extraction and freezing.
“On a literal interpretation, the extraction and freezing of eggs are unambiguously a part of ‘assisted reproductive technology’. I say they are a part of ‘assisted reproductive technology’ as they are one in a series of sequential, technological steps required for the potential birth of a child,” he said.
He said he was not satisfied there was admissible evidence or dictionary definitions which provided a single accepted scientific meaning for “assisted reproductive technology” beyond or different to the ordinary meaning he had found.
He said the explanatory memorandum for the CS Act made a clear statement of intent that prisoners’ access to assisted reproductive technology was prohibited.
“Further, the clear prohibition was said to ensure equity in decision-making between prisoners and did not require correctional authorities to make value judgments as to whether individual prisoners should be allowed to procreate while in prison and are suitable to parent and provide for a child,” he said.
“When dealing with s 22 of the CS Act specifically, the memorandum provided in broad terms that the section made it clear that the right to procreate did not survive imprisonment, and that a prisoner cannot apply for approval to participate, or participate in assisted reproductive technology.
“There was nothing in the explanatory memorandum which expressly provided that “assisted reproductive technology” was intended to be limited to processes where conception first occurred or processes which were subsequent to conception having occurred.”
Justice Sullivan said another purpose of the prohibition was to ensure all prisoners were treated equitably.
“Applying some form of arbitrary meaning to “assisted reproductive technology” based on a present intention of a prisoner not to seek to have a child during the term of imprisonment would lead to unequal treatment. Certain prisoners would be allowed to have medical examinations and treatments to extract and freeze gametes, whilst others would be denied this,” he said.
“The ordinary meaning of “assisted reproductive technology” includes the process of using drugs, the process of extracting any eggs produced and the process of freezing the eggs. There is nothing in the statutory purpose and context of the CS Act which indicates that some construction other than the above ordinary meaning is intended to be attributed to this phrase.
“To attribute a meaning to “assisted reproductive technology” that only starts at the point of a particular step in the overall process (namely at the point of conception) is to seek to rewrite the legislation in order to achieve a desired result.
“It departs from the ordinary meaning of the words used in the CS Act which are evident from the text, and consistent with the context and purpose of the CS Act.
“It does so by seeking to apply what I have found to be an arbitrary definition not otherwise open on the ordinary meaning of the words used.”
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