Gametes – The New Property
The third question on my first year property law exam asked whether Canadian law classified body parts (organs, limbs and reproductive material) as property. Unfortunately for my class, Justice Russell of the Supreme Court of British Columbia answered that question on April 25th, 2012 in J.C.M v A.N.A. 2012 BCSC 584 – two short weeks after the exam. While this is a trial level decision from BC, and thus not binding in Ontario, the decision sheds light into the courts’ response to advancements in medicine.
In 1998, two women, J.C.M. and A.N.A., began a spousal relationship. As a couple, they purchased sperm straws one year later from the same donor at an American sperm bank for about $250 per sperm straw. A.N.A and J.C.M. conceived a child with the donor’s sperm in 2000 and 2002 respectively.
In 2007 the couple entered into a separation agreement. This agreement provided for custody and support of the children. Each woman had primary custody over the child she conceived, but allowed visitation rights to the non-biological child. The agreement also divided all joint property of the relationship; however, the thirteen remaining sperm straws from the donor were not divided under the agreement.
In 2009, J.C.M. met T.L. and one year later the pair began a spousal relationship. T.L. now wishes to have a child with J.C.M. using the remaining sperm straws so that the child will be biologically related to J.C.M.’s child. J.C.M. offered to purchase what she considered to be A.N.A.’s interest in the sperm straws, six and a half straws, for $250 per straw. A.N.A. preferred the sperm straws be destroyed. J.C.M. in turn looked for other venues to find the donor’s sperm. No such sperm straws were available, and the American sperm bank had no contact information for the donor.
Without consent from A.N.A. to release the sperm straws, and without other affordable options to get sperm from the sperm donor, J.C.M. filed an application for a court order that the sperm straws become her sole property. A.N.A. opposed and requested the straws be destroyed.
Issues and Answers
The issue the court grappled with is whether or not sperm straws are considered property and, if so, how they should be divided. The court ultimately found that the sperm was property. Since the parties had the intent to divide the assets fairly, the remaining gametes were to be divided between the parties – seven for J.C.M. and six for A.N.A (with J.C.M. compensating A.N.A $125 for the additional one half that she will receive).
There is a very small body of caselaw in Canada on this matter. As a result, the claimant and the respondent approached the novelty of the claim differently.
The claimant discussed various cases from the United States and the United Kingdom and one from Canada arguing that the basis of the determination should be that of parental obligation. If awarding the sperm straws to one of the parties does not create a parental obligation on the other party who chooses not to procreate, then there is no reason to treat the sperm as anything other than property. The respondent addressed the lack of Canadian cases that treat gametes as property. Therefore, she argued that the issue is a moral one, and relied on academic papers to counter the property argument.
Russell J begins her analysis with a disclaimer insisting that the future analysis is not an attempt to devalue the substance at issue. She then frames the issue by recognizing that “sperm used to conceive two children for two loving parents does not have the same emotional status as a vehicle or a home.”
The court relied primarily on C.C. v A.W., 2005 ABQB 290, which involved a dispute over four embryos remaining in in vitro fertilization. Twins were born to C.C. through a donation of sperm from A.W. He refused to consent to the release of the embryos because of the difficulty he faced from C.C over access to the twins. The Alberta Court found that the embryos were the property of C.C. as “they are chattels that can be used as she sees fit.” In C.C the court found that sperm became the plaintiff’s property once it was given to her. Similarly, once the claimant and respondent purchased the sperm straws, they became their property and could be used for their benefit.
The court here rejected the respondent’s argument of morality. Russell J explained that it is not the role of the court to engage in such philosophical arguments. A major component of the respondent’s argument cites Dr. Steinbock, who claims that there must first be a determination of what may be done with the sperm (can it be donated, sold, stored, et cetera) before it can be classified as property. In this case, the sperm has already been donated, sold and stored. Furthermore, Russell J emphasized the timing of this argument: it was a little late to be making a moral argument regarding the commercialization of reproduction, since the couple had already made use of the gametes for their benefit.
Something is Missing
At paragraph 57, Russell J insists that once the sperm was purchased it became their property and could be used for their benefit. She then goes on to recognize that the Federal government prohibited the purchase of sperm in section 7(1) of the Assisted Human Reproduction Act, SC 2004 c 2 [Act], which states the following:
Purchase of gametes
7. (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.
Although she addresses the legislation, she dismisses it in shaping her view of whether the sperm may be classified as property. She posits that
“the sperm has been treated as property up until this point, in my view the legislation does not dictate or even influence whether or not the gametes in this case are property.”
Her analysis lacks an interaction with the legislation. Whether this is because the couple purchasing the sperm in 1999 (several years before the Act was enacted), because the sperm was purchased in the United States and not Canada, or because she does not think it is relevant is not clear based on her reasoning. Instead, she relies on the fact that the gametes had already been purchased, the legislation does not impact the way in which the court will treat the gametes. Does that mean that couples who transgress section 7(1) of the Act, will be able to dispute possession of sperm in the future? The choice to not engage in such analysis leaves the question of how this precedent will be applied in future cases a bit unclear.
Perhaps then the question on the property exam has still not been answered. In this particular case, the court found that gametes may be classified as property. Without meaningful engagement with the Act, it is unclear how the court will rule in future disputes.