A woman jailed five years ago has won a legal fight to freeze her eggs while serving out her sentence for drug trafficking.
Rachel Smith, 36, was sentenced to a decade behind bars in Queensland in July 2021 and applied two years later for approval to extract and freeze her eggs “at her own cost”.
She was 32 at the time of her sentence and will be 41 when her sentence ends, arguing she should be able to preserve her ability to conceive once released.
But the procedure was knocked back by Queensland Corrective Services and a succession of Queensland courts before Smith took the case to the High Court.
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In a judgment handed down on Wednesday, the High Court ruled in her favour, finding the Queensland courts had “misconstrued” the Corrective Services Act when finding Queensland law barred the procedure.
Under the law, prisoners are unable to access “assisted reproductive technology”, such as artificial insemination.
“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 wrote.
“This is because egg or sperm extraction and freezing, as submitted for the appellant, is an end in and of itself, that end being the preservation of the prisoner’s capacity to procreate on the prisoner’s release from the corrective services facility.”
The court found egg freezing to preserve fertility for a later date was not barred by Queensland law.
The decision on whether Smith is able to freeze her eggs has been sent back to Queensland Corrective Services to determine.