Prisoner takes fight to freeze her eggs to Queensland's highest court

A Queensland prisoner has taken her fight to have her eggs frozen while in custody to the state's highest court.

Rachel Smith is currently serving a 10-year sentence after being convicted of drug trafficking and will be eligible for parole in 2029.

In 2024, when Smith was aged 33, she attempted to apply to the chief executive of Queensland Corrective Services (QCS) to undergo a privately funded Oocyte cryopreservation procedure.

Her application was unable to be considered based on QCS legislation which bans prisoners from applying for access to medical treatments involving "assisted reproductive technology".

Last year, Smith tried and failed to have that decision overturned in the Supreme Court and has now brought her challenge before the Court of Appeal.

This week, lawyers for Smith argued the Supreme Court judge who upheld the chief executive's decision had made an error in law when interpreting the QCS legislation.

Paula Morreau told the court egg freezing does not fall under the "ordinary meaning" of "assisted reproductive technology" because the procedure alone cannot cause reproduction.

Although pregnancy is Smith's "ultimate aim", as she intends to have her frozen eggs fertilised and implanted after she leaves prison, Ms Morreau said this is only "a possibility".

Earlier judicial review dismissed

In a judicial review decision published in November, Smith submitted egg freezing was merely a "preparatory" activity, which could later lead to other processes "which involve conception".

"[Smith] submitted the ordinary meaning of the phrase is the application of technology at a point where reproduction can occur by its implementation, such as in vitro fertilisation or artificial insemination", the judgement said.

"On Ms Smith's case, it is only those later processes which constitute 'assisted reproductive technology'."

However, Justice Tom Sullivan rejected this argument, and determined the process involved the use of various technology "solely for the purpose of assisting in reproduction".

He said this was because it includes multiple drug administrations, daily medical examinations, blood tests, ultrasounds, and the egg extraction, which is performed under sedation.

"[Egg freezing procedures] are one in a series of sequential, technological steps required for the potential birth of a child," he said in the judgement.

Smith also tried to argue her human rights were being breached.

She submitted the section of the Human Rights Act — which states "all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights" — was not considered by the chief executive.

This included her right to have access to health services "without discrimination" and to be "treated with humanity and respect for the inherent dignity of the human process" while incarcerated.

Justice Sullivan also rejected this argument, finding a consideration of this part of the legislation "does not lead to a different result".

"The decision of the chief executive was correct in law and the application should be dismissed," he said in the judgement.

The Court of Appeal decision on whether Justice Sullivan's ruling was lawful has been reserved.