High Court Rules in Favour of Queensland Prisoner Seeking to Freeze Her Eggs

A landmark High Court decision has paved the way for a Queensland prisoner to undergo a procedure to freeze her eggs while serving her sentence. The ruling found that laws used to block the procedure were misinterpreted.

Rachel Smith, 36, is serving a 10-year jail term for drug trafficking. She had applied to Queensland Corrective Services (QCS) for approval to receive a privately funded Oocyte cryopreservation procedure. Smith wants to preserve her potential to have children upon her release.

QCS automatically refused her application, citing Queensland laws that prohibit inmates from accessing "assisted reproductive technology". Smith challenged the decision in the Supreme Court and then in the Court of Appeal, arguing that egg freezing did not fall under this definition, as it was only a "preparatory" step.

After failing to convince the Queensland appellate judges, Smith sought leave to appeal in the High Court. Following a hearing in Canberra last month, five High Court judges allowed her appeal.

In a written judgment, the High Court judges said the two Queensland courts "misconstrued" the section of the legislation QCS relied on to automatically refuse Smith's application. The judges agreed with Smith that the procedure was not considered assisted reproductive technology "within the meaning of that phrase".

"Properly construed, the phrase ... includes only technology that directly assists with conception or reproduction," the judgment said. "It does not include egg extraction and freezing, which involve technology that assists to preserve fertility."

The judges ordered that the decision made by QCS in 2024 should be quashed. They also ordered the matter to be returned to the department's chief executive for determination "according to law".

"The chief executive can approve that participation in accordance with [the Corrective Services Act]," the judgment said. "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."

Under the legislation, the chief executive "may give the approval" for a private medical examination or treatment if they are satisfied the application "is not frivolous or vexatious". The prisoner must be able to pay for it themselves and their health practitioner must be "willing and available" to carry it out.

QCS was also ordered to pay Smith's legal costs. A Queensland Corrective Services spokesperson said it was aware of the High Court decision and is "currently reviewing the judgment and will consider the application in accordance with the Court's orders".