Incarcerated woman granted leave to appeal egg-freezing ban in High Court

A woman fighting to freeze her eggs while incarcerated will take her challenge to Australia's highest court.

Rachel Smith, who is serving a 10-year sentence for drug trafficking, has been granted leave to appeal a decision to ban her from the procedure in the High Court of Australia.

The High Court hearing to appeal the Queensland Court of Appeal decision will be heard at a later date.

The country's highest court will decide whether a Queensland prisoner can freeze her eggs while serving time for drug trafficking.

Rachel Smith is currently completing a 10-year jail sentence after pleading guilty to the single charge in 2021.

Partway through her term, when she was 33 years old, Smith applied to the Queensland Corrective Services (QCS) for approval to undergo a privately funded Oocyte cryopreservation procedure.

The application was automatically refused based on QCS legislation which states that prisoners are prohibited from accessing the medical treatment, as it is considered "assisted reproductive technology".

In 2024, Smith sought a judicial review in the Supreme Court, with her lawyers submitting at that time that egg freezing was a "preparatory" step.

It was argued because there was only a possibility it could lead to other future processes which could involve conception, it did not amount to "assisted reproductive technology'."

This challenge was dismissed, and last year Smith launched an appeal against that decision.

During a hearing in Brisbane, her lawyers again submitted the procedure did not fall under the "ordinary meaning" of the phrase "assisted reproductive technology" because it alone cannot cause reproduction.

The appeal also heard evidence about age-related infertility, as well as associated medical risks to pregnant women and babies, and how egg freezing at a younger age could reduce this.

Smith, who will be eligible for parole in 2029 when she will be age 39, wanted to try and fall pregnant after being released from prison, the appeal heard.

Earlier this year the Court of Appeal also ruled against her, finding the meaning of the phrase within the Act was "broad" and was "not confined to excluding a prisoner from steps which pertain to fertilisation itself".

"It is not limited to the act which begins reproduction, but any step which would be participating in assisted reproductive technology by engaging in the preparatory steps to enable assisted reproduction to occur," the COA said in its judgment.

Smith subsequently applied for special leave to the High Court of Australia, which was granted this week.

The High Court hearing to appeal the COA decision will be heard at a later date.