Court distinguishes fertility preservation from assisted reproduction under Queensland law
The High Court of Australia has allowed a prisoner's appeal against Queensland Corrective Services' refusal to approve egg extraction and freezing, ruling that the procedure does not fall within the prohibition on assisted reproductive technology under the Corrective Services Act 2006 (Qld).
In Smith v Chief Executive, Queensland Corrective Services [2026] HCA 37, the High Court held that the prohibition in s. 22(2) of the Act applies only to technology that directly assists conception or reproduction, rather than procedures intended to preserve fertility.
The prisoner applied in June 2023 for approval to undergo egg extraction and freezing at her own expense. She was 32 when she applied and will be 39 when eligible for parole and 41 when her sentence expires. The parties did not dispute that she would likely experience a material reduction in fertility before her release.
A delegate of the chief executive of Queensland Corrective Services refused the application on the basis that egg freezing constituted assisted reproductive technology prohibited under s. 22(2).
The Supreme Court of Queensland dismissed her application for a statutory order of review. The Court of Appeal upheld that decision, finding that the statutory prohibition extended to egg extraction and freezing because the eggs would be available for future reproduction.
Before the High Court, the prisoner argued that the legislation prohibited prisoners from using technology to conceive while incarcerated but did not prevent them from preserving their ability to conceive after release.
The High Court accepted that distinction. It found that extracting and freezing eggs involved procedures separate from reproduction and did not constitute participation in assisted reproductive technology within the meaning of s. 22(2).
The court examined the legislation's purpose, including its recognition of prisoners' basic human entitlements, dignity, and special needs arising from age or sex.
It also considered the explanatory materials accompanying s. 22, which identified the prohibition's purpose as preventing prisoners from procreating while incarcerated.
The court found that the broader interpretation adopted by the lower courts could capture medical procedures such as endometriosis treatment, diagnostic laparoscopy, and fertility preservation associated with cancer treatment. It concluded that such an interpretation could effectively restrict a prisoner's ability to procreate after imprisonment.
The High Court allowed the appeal, set aside the relevant lower-court orders, and quashed the chief executive’s decision.
