Emily Woods
A woman has won an appeal in Australia’s highest court about her right to freeze her eggs while behind bars.
Rachel Smith is serving a 10-year prison term in Queensland for trafficking in a dangerous drug.
She will be 39 when eligible for parole and 41 once her full sentence ends.
To reduce the risk of age-related infertility, Smith applied for approval to undergo egg freezing while behind bars.
However, under state law, Corrections Queensland argued egg extraction and freezing were prohibited as they would be classified as “assisted reproductive technology”, which is banned under the Corrective Services Act 2006.
Smith challenged this, arguing against Corrections’ interpretation of the law’s wording and said her human rights were being breached.
She took Queensland Corrective Services to the Supreme Court and then the state’s Court of Appeal, but was unsuccessful.
The High Court accepted her appeal and on Wednesday found in Smith’s favour, concluding the Queensland courts had “misconstrued” the Corrective Services Act.
“Ms Smith was entitled to apply to participate in egg extraction and freezing to be undertaken by her nominated health practitioner, which is not ‘assisted reproductive technology’,” Justice Jayne Jagot said in reasons supported by three other judges.
The court set aside the lower courts’ orders and ordered Corrections Queensland to determine the application again according to law.
“In circumstances where this appeal has been granted expedition, and Ms Smith has been denied the opportunity to obtain a timely approval of her application, it is now incumbent on the chief executive to decide her application as soon as reasonably possible,” Jagot said.
Corrections was also ordered to pay Smith’s legal costs.
AAP
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