A prisoner made an application to Queensland Corrective Services seeking to have some of her eggs extracted and frozen so that she may undergo ‘assisted reproductive technology’ upon her release from imprisonment. The application was refused. Her subsequent application to appeal that decision was also refused. She then sought to appeal that decision in the Supreme Court of Appeal at Brisbane.
In issue
- Whether the primary judge misinterpreted the meaning of ‘assisted reproductive technology’ in s 22(2)(b) of the CSA in deciding that it excludes the process of egg extraction and freezing, and that the application did not involve matters of public interest.
The background
Ms Rachel Smith is a 33-year old prisoner who was sentenced to 10 years’ imprisonment for trafficking in a dangerous drug on 13 July 2021. She wished to have some of her eggs extracted and frozen during the term of her imprisonment (so as to avoid age-related risks of her eggs deteriorating and reducing the possibility of conceiving a child), and employ assisted reproductive services to become pregnant upon her release from prison, at the age of 41. Medical evidence compared the age periods of 33 to 35 and 39 to 41 and found that there was a reduction in a woman’s fertility and increased risk of chromosomal abnormality in the latter stage.
Ms Smith applied to the respondent for approval under s 22 of the CSA to extract and freeze her eggs. It was noted that she did not intend to fertilise and implant the eggs whilst in prison. The respondent refused her application on the basis that egg extraction and freezing fell within the meaning of ‘assisted reproductive technology’ and was prohibited by s 22(2) of the CSA. The issue therefore was whether Ms Smith’s engagement in the process of egg extraction and egg freezing amounted to participating in ‘assisted reproductive technology’.
The decision
Ms Smith contended that the ordinary meaning of ‘“assisted reproductive technology” was the application of technology at a point where reproduction can occur by its implementation, such as invitro fertilisation or artificial insemination.’ As such, she argued that since the extraction and freezing of eggs alone could not result in a pregnancy, these steps did not constitute ‘assisted reproductive technology’. The primary judge disagreed with this contention and concluded that the ordinary meaning of the phrase did include egg extraction and freezing as this step was ‘one in a series of sequential, technological steps required for the potential birth of a child.’ The primary judge noted that Ms Smith’s choice of the point of conception as the starting point for ‘assisted reproductive technology’ was arbitrary.
The primary judge considered the context of s 22(2)(a) of the CSA and considered that the general purpose of the legislation captured in s 3 was to express how prisoners are denied their ordinary human entitlements during their period of incarceration. In line with this purpose, the primary judge concluded that s 22 ‘represents the striking of the relevant balance between a prisoner’s ordinary human entitlements and the consequences of being in a system of incarceration where Corrective Services must manage prisoners.’ The primary judge also took into consideration the Explanatory Notes for the Bill that was enacted as the CSA and noted that in relation to s 22 it was stated that, the ‘right to procreate did not survive imprisonment.’
The Court noted that the prisoners had a right under s 22(1) to seek examination or treatment by a health practitioner and emphasised that this right did not extend to examination or treatment for the purpose of participating in ‘assisted reproductive technology’ (s 22(2)). The Court considered that Ms Smith’s ultimate goal in seeking to undergo egg extraction and freezing was to engage in reproduction, albeit years down the track. As such, the Court concluded that the ordinary meaning of the words in s 22(2) of the CSA and its purpose defined in the Explanatory Note was clear and that the primary judge had not erred in construing the provision.
In regard to Ms Smith’s application for leave to appeal against the costs order, the Court considered the conclusion the primary judge came to, in finding that Ms Smith’s application was based on a personal interest rather than a public one. The primary judge considered that there may be other female prisoners who may also wish to freeze their eggs for future use after release, but these personal interests did not amount to the public interest. The primary judge also noted that although the application involved the statutory construction of s 22(2) of the CSA, and therefore had some element of public interest, ultimately, the application involved applying ‘settled principles of statutory interpretation.’ Hence, the Court concluded that the primary judge did not make an error in treating the application as one of primarily personal interest rather than one affecting public interest.
The Court ultimately refused the application for leave to appeal against the costs order.
On 6 August 2026, Ms Smith was granted special leave to appeal the judgment of the Court of Appeal.
Implications for you
This decision reinforces a key purpose of corrective services – to punish, and in this case, to deny the right to reproduction using the help of assisted reproductive services.
It also helpfully illustrates and explains the meaning of the term ‘assisted reproductive technology’ which will be of interest to the providers of such services. The definition is relevant to determine the scope of matters such as professional liability exposure, insurance policy coverage and regulatory compliance risk.