Australia’s highest court will decide whether a woman in prison in Queensland should be allowed to freeze her eggs while she is incarcerated.
Rachel Smith has been granted leave to challenge a ban on freezing her eggs while serving a prison sentence in the High Court of Australia.
The case began when Smith, who was then 33-years-old and halfway through a 10-year sentence, applied from prison for approval to undergo privately-funded egg freezing.
Smith said she intended to get pregnant when released from prison, but was concerned about the health implications of doing so at the age of 39.
This application was rejected by Queensland Corrective Services, since legislation in that state bans medical treatment that is considered “assisted reproductive technology”.
Smith has launched several challenges to this decision, focusing on whether freezing your eggs should be defined as “assisted reproductive technology” and included in this ban.
Her lawyers have argued that this is a “preparatory step” rather than something directly involved in reproduction, and it can only potentially lead to a pregnancy.
Smith’s first legal challenge was dismissed, and an appeal was also thrown out in early 2026.
The Court of Appeal found that egg freezing does fall into the definition of “assisted reproductive technology” under Queensland law, as this is “not confined to excluding a prisoner from steps which pertain to fertilisation itself”.
This ruling will now be challenged in the High Court of Australia, with Smith granted leave in early August.
Dr Molly Johnston, a reproductive ethics expert and Research Fellow at the Monash Bioethics Centre, said the High Court appeal is a “significant and welcome development”.
“That the High Court will hear this case signals that there are genuinely important legal questions at stake,” Johnston told About Time. “What is particularly notable is that six judges signed off on Smith’s request for special leave – it is unusual to have so many signatories, and it may indicate that the court sees merit in the appeal.”
The case will test whether egg freezing should be counted as “assisted reproductive technology”, and whether the woman should be allowed to undertake this procedure while she is incarcerated.
It may also have implications for other people in prison looking to access this form of medical procedure.
Johnston said she would be looking for the High Court to find that people in prison do have a right to undergo an egg-freezing procedure.
“I hope that Smith’s appeal succeeds, and that the Court recognises that there is a meaningful legal and ethical distinction between restrictions that apply within prison and harms that extend permanently beyond it,” she said.
“No Australian court has ever prescribed loss of reproductive capacity as a legitimate sentencing objective. The High Court has an opportunity to confirm that no policy should produce this outcome by default.”
Australia’s highest court will decide whether a woman in prison in Queensland should be allowed to freeze her eggs while she is incarcerated.
Rachel Smith has been granted leave to challenge a ban on freezing her eggs while serving a prison sentence in the High Court of Australia.
The case began when Smith, who was then 33-years-old and halfway through a 10-year sentence, applied from prison for approval to undergo privately-funded egg freezing.
Smith said she intended to get pregnant when released from prison, but was concerned about the health implications of doing so at the age of 39.
This application was rejected by Queensland Corrective Services, since legislation in that state bans medical treatment that is considered “assisted reproductive technology”.
Smith has launched several challenges to this decision, focusing on whether freezing your eggs should be defined as “assisted reproductive technology” and included in this ban.
Her lawyers have argued that this is a “preparatory step” rather than something directly involved in reproduction, and it can only potentially lead to a pregnancy.
Smith’s first legal challenge was dismissed, and an appeal was also thrown out in early 2026.
The Court of Appeal found that egg freezing does fall into the definition of “assisted reproductive technology” under Queensland law, as this is “not confined to excluding a prisoner from steps which pertain to fertilisation itself”.
This ruling will now be challenged in the High Court of Australia, with Smith granted leave in early August.
Dr Molly Johnston, a reproductive ethics expert and Research Fellow at the Monash Bioethics Centre, said the High Court appeal is a “significant and welcome development”.
“That the High Court will hear this case signals that there are genuinely important legal questions at stake,” Johnston told About Time. “What is particularly notable is that six judges signed off on Smith’s request for special leave – it is unusual to have so many signatories, and it may indicate that the court sees merit in the appeal.”
The case will test whether egg freezing should be counted as “assisted reproductive technology”, and whether the woman should be allowed to undertake this procedure while she is incarcerated.
It may also have implications for other people in prison looking to access this form of medical procedure.
Johnston said she would be looking for the High Court to find that people in prison do have a right to undergo an egg-freezing procedure.
“I hope that Smith’s appeal succeeds, and that the Court recognises that there is a meaningful legal and ethical distinction between restrictions that apply within prison and harms that extend permanently beyond it,” she said.
“No Australian court has ever prescribed loss of reproductive capacity as a legitimate sentencing objective. The High Court has an opportunity to confirm that no policy should produce this outcome by default.”
Egg freezing differs from other forms of assisted reproduction and should be treated as such, she said. “It doesn’t result in pregnancy nor does it result in a child being born or raised in custody,” Johnston said.
“It simply preserves the future possibility of having genetically-related children. The concerns courts have historically raised about assisted reproduction in prison such as child welfare, resources, the conditions of custody – they don’t apply here. What we’re really talking about is a time-sensitive medical procedure and refusing it may have permanent consequences.”
In Victoria the Supreme Court ruled in 2010 that fertility treatment should be available to those in prison if it is privately funded.
The Supreme Court found that the plaintiff, Kimberley Castles, was entitled to undergo IVF treatment under the Corrections Act.
This was based on the established human right that people in prison should not be subjected to hardship or constraint other than what necessarily results from being incarcerated. It found that the Corrections Act allows incarcerated people to “do more than remain in a ‘holding pattern’ with respect to their health while imprisoned”.
The Court also found that IVF was a “legitimate medical treatment for a legitimate medical condition”.
Recently, a woman was granted release to undergo IVF treatment, but she did not end up going through with this treatment.
In 2024 the Victorian Opposition introduced a bill to Parliament that would ban people in prison from undergoing any assisted reproductive treatment; this is similar to the ban currently in place in Queensland.
The bill was voted down in the Victorian lower house.
Egg freezing differs from other forms of assisted reproduction and should be treated as such, she said. “It doesn’t result in pregnancy nor does it result in a child being born or raised in custody,” Johnston said.
“It simply preserves the future possibility of having genetically-related children. The concerns courts have historically raised about assisted reproduction in prison such as child welfare, resources, the conditions of custody – they don’t apply here. What we’re really talking about is a time-sensitive medical procedure and refusing it may have permanent consequences.”
In Victoria the Supreme Court ruled in 2010 that fertility treatment should be available to those in prison if it is privately funded.
The Supreme Court found that the plaintiff, Kimberley Castles, was entitled to undergo IVF treatment under the Corrections Act.
This was based on the established human right that people in prison should not be subjected to hardship or constraint other than what necessarily results from being incarcerated. It found that the Corrections Act allows incarcerated people to “do more than remain in a ‘holding pattern’ with respect to their health while imprisoned”.
The Court also found that IVF was a “legitimate medical treatment for a legitimate medical condition”.
Recently, a woman was granted release to undergo IVF treatment, but she did not end up going through with this treatment.
In 2024 the Victorian Opposition introduced a bill to Parliament that would ban people in prison from undergoing any assisted reproductive treatment; this is similar to the ban currently in place in Queensland.
The bill was voted down in the Victorian lower house.
