Property law extends to sperm

Six men who had their sperm frozen and stored before they underwent chemotherapy had a right to compensation when the samples perished, the Court of Appeal has ruled.
In Yearworth and Ors v North Bristol NHS Trust [2009] EWCA Civ 37 Lord Judge, the lord chief justice stated how the case raises “interesting questions about the application of common law principles to the ever expanding frontiers of medical science. In particular...about the ability to sue in tort and/or in bailment in respect of damage to bodily substances, namely semen which the men had produced for their possible later use and which the Trust had promised meanwhile to freeze and to store”.
The trust argued that the loss of the sperm amounted neither to personal injury nor damage to property.
Lord Judge found the loss did not constitute personal injury. However, he distinguished 17th century laws that human bodies cannot be owned, whether living or dead, and found there was “a bailment of the sperm by the men to the unit”. The claimants were entitled to compensation for the distress or psychiatric injury suffered as a result of the loss of the samples.
Chris Thorne, partner, Foot Anstey, who acted for the men, says: “Unfortunately the Human Fertilisation and Embryology Bill 2008 which recently passed through parliament does not address the ownership of sperm samples and so the only way to clarify the law was to take this case to the Court of Appeal.
“While Parliament has struggled with the passage of the Bill for years, the judiciary have shown them the way forward by taking decisive action. Th e court found that live tissue stored away from the body cannot, if damaged, give rise to a claim for personal injury, although the court recognised the validity of the arguments raised by the claimants. Th e lord chief justice said that extending the defi nition of a personal injury in this area would give rise to ‘uncomfortable anomalies’.
“However the court’s finding that a sperm sample is the property of the donor is a signifi cant extension of the law of property. The court rejected the argument that it was bound by law stretching back over 400 years relating to a corpse or body part being incapable of ownership.”