A fertile topic

The case of Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 provides an important analysis of the potential for proprietary interests to vest in human sperm. While its wider implications should not be exaggerated, it ought to provoke further debate on the status of live human body parts.

The claimants were cancer patients at a hospital run by an NHS trust, who had sperm samples frozen and stored in the hospital's fertility unit. As a result of an equipment fault, the samples thawed and were damaged. The men claimed that they suffered mental distress and/or psychiatric injury on learning of the loss of the samples. The trust denied liability, arguing inter alia that the men were not entitled to claim damages because loss of sperm did not amount to a 'personal injury' or damage to their 'property'. The district judge who first heard the case agreed so the men appealed.

The Court of Appeal also agreed that the damage to and consequential loss of the sperm samples did not constitute 'personal injury' but took a different view of the property interests vested in the samples. Reviewing historic case law, the court noted that the law 'has to some extent begun to be refined in relation both to a human corpse and to parts of a human corpse; but it has remained noticeably silent about parts or products of a living human body, probably because, until recently, medical science did not endow them with any value or other significance'. Having made this distinction, the court was relatively unconstrained by previous decisions and approached the question of ownership rights over sperm afresh.

Retaining absolute control

The court recognised that the tight regulation of fertility clinics and the samples they store did erode and limit the rights and control exercised by the claimants, but it held that this did not amount to an elimination of their rights. Indeed, the consent requirements of the Human Fertilisation and Embryology Act 1990 provided the men with a negative control over the samples which remained absolute in the eyes of the court. For these and other reasons, the court held that the men did indeed have ownership of the sperm samples for the purpose of their claims.

Although not raised before the district judge, the appeal judges asked the parties to make submissions on whether the claimants had a distinct cause of action under the seldom seen 18th century law of bailment. Following a review of aged case law, the court held that there was a bailment of the sperm by the men (the bailees) to the trust (the bailor) and that, subject to the resolution of factual issues before the county court, the trust was liable to them under the law of bailment as well as under that of tort.

Yearworth is undoubtedly noteworthy but its implications beyond the circumstances of this case are limited. The Court of Appeal was concerned with the status of gametes from a living body, stored under licence and intended for use by the men whose bodies had produced them. The appeal judges focused on control and 'the right to use' as a gauge of proprietary interest, influenced in part by the decisions of the Californian courts in Moore v Regents of the University of California (1990) and, in particular, Hecht v Superior Court of Los Angeles County (1993).

In Moore the Supreme Court of California rejected a claim for a share of profits generated from a valuable cell line derived from the claimant's tissue because the claimant did not remain owner of the tissue following its removal.

In Hecht the Court of Appeals had to consider whether sperm samples were capable of being bequeathed in a Will. The court held that, at the time of his death, the man concerned had sufficient decision-making authority in relation to the use of his sperm for it to amount to 'property' for the purposes of the state's Probate Code. The court distinguished Moore on the basis that in that case the claimant had had no expectation of continuing to exercise dispositional control over his tissue following its removal. Thus so in England and Wales post-Yearworth: sperm aside, the proprietary status of other tissues and cells will need to be considered on a case-by-case basis. Medical and scientific communities need not panic.

Inconsistencies

Yearworth does however create a number of curious dichotomies which warrant attention. Firstly, the judgment indicates that the purpose for which gametes are stored will affect its proprietary status: it follows that sperm stored for treatment may be capable of ownership, while 'research sperm' may not.

More complex is the distinction between gametes and embryos. The courts have previously rejected any suggestion that there could be property in an embryo, and there are numerous ethical, legal and biological distinctions to be drawn between gametes and embryos. Nevertheless, the distinction between gametes and the embryos which they produce is important.

Finally, and perhaps most notably, Yearworth permits compensation for the owners of damaged gametes, while the same donors would be prohibited from selling their sperm samples for profit. The sale of gametes has funded many a college education in the US but has to date been frowned upon in the UK on policy grounds. Yearworth may encourage a review of this policy which might appear inconsistent with the Court of Appeal's approach in this case.