Human Sperm to Constitute Legal Property: Lam v University of British Columbia

On January 6, 2015, the British Columbia Court of Appeal (“BCCA”) delivered a judgment upholding a trial judge’s decision to consider human sperm to be “property” for the purposes of provincial legislation regulating the storage of goods.

Lam v University of British Columbia, 2015 BCCA 2, touches on the bioethics of whether human reproductive tissues can or should be conceptualized as property and give rise to corresponding legal rights. The ruling provides some much welcomed clarity, which is crucial in an era where technological advancement in reproductive medical procedures has outpaced the law. At the same time, the decision in Lam does not tread unnecessary legal ground, restricting its precedent to a specific factual matrix in a manner that is cognizant of the ethical issues that surround the subject of human body ownership.

History of Proceedings and Legislative Framework

The respondent, Howard Lam, was the representative of a class of about 400 plaintiffs who were diagnosed with cancer. Prior to receiving radiation therapy that could adversely affect their reproductive potential, the members of the class arranged to store their sperm in an ultra-cold freezer for procreation at a future time. The freezer was located in the Andrology Laboratory operated by the University of British Columbia. In 2002, it was discovered that the electrical supply to the freezer had been interrupted. As a result, the sperm stored inside the freezer became damaged, and its genetic material was destroyed.

At the time the members of the class deposited their sperm for storage, they signed a Sperm Bank Facility Agreement (“Facility Agreement”). The Facility Agreement required those relying on storage services to remunerate the University with initial fees upon deposit. It also required they pay a fairly modest annual storage fee. Additionally, the agreement included a limitation of liability clause that stipulated UBC would be exempt from liability for damage or destruction of specimens, for reasons that included improper storage, maintenance, or freezing.

Lam alleged negligence and breach of contract against UBC with respect to the freezer malfunction. For its part, UBC claimed that it was exempt from liability, relying on the exclusion clause outlined in the Facility Agreement. Lam countered that UBC was precluded from relying upon the exclusion clause set out in the Facility Agreement against members of the plaintiff class by virtue of the Warehouse Receipt Act, RSBC 1996, c 481 [WRA]. The WRA is a British Columbia statute which stipulates that individuals identified as “warehousers” cannot insert contractual terms restricting their obligation to exercise “care and diligence” in regard to goods in their custody. The definition of goods under the section 1 of the WRA includes “all property other than things in action, money and land.”

To determine whether the members of the class could rely on the WRA to preclude enforceability of the exclusion clause in the Facility Agreement, it was therefore necessary to first determine whether sperm can be categorized as “goods” under the ambit of the WRA definition. At trial, the trial judge ruled that the sperm in question were indeed “property.”

The Ruling

UBC appealed the trial ruling to the BCCA on the grounds that the judge erred in concluding that human sperm is property for the purposes of the WRA. Specifically, UBC advanced the position that the trial judge erred in his approach to statutory interpretation of the WRA by ascribing insufficient weight to contextual and historical indicators of legislative intent.

UBC alleged that, contextually, property under the WRA must refer to commercially-traded property. The existence of the Assisted Human Reproduction Act, SC 2004, c 2 [AHRA], which prevents sale of human reproductive material, therefore prevents sperm from being classified as property. Secondly, UBC submitted that from a historical standpoint, human sperm could not have been considered “property,” as cryogenic freezing and artificial insemination were “matters for science fiction writers” at the time the WRA was enacted.

Justice Bennett, writing for the majority, focused her analysis on the jurisprudence surrounding treatment of human reproductive material as property. Justice Bennett first noted that historically, there has been no property interest in the human body (with the exception of the period when slavery and ownership of humans were legally recognized). Justice Bennett then turned to modern cases, which have carved out an exception to this general rule. In doing so, Justice Bennett relied extensively on Yearworth v North Bristol NHS Trust, [2009] EWCA Civ 37 [Yearworth], wherein the England and Wales Court of Appeal dealt with a case that had a remarkably similar factual basis to Lam.

In Yearworth, five men who were to under chemotherapy entrusted sperm samples to the defendant in the event their treatment rendered them infertile. Sometime after storage, improper conditions in the storage unit resulted in the sperm thawing and becoming useless for reproductive purposes. Upon storage of the sperm, the plaintiffs in Yearworth had signed a storage agreement that featured a limitation of liability clause similar to the one featured in the Storage Agreement in the case at hand.

The Court in Yearworth determined that human sperm was property, and capable of being owned, for the purposes of the tort of negligence. The court’s reasons rested on the fact that the plaintiff’s themselves had produced the sperm with the sole intention of later using it to their reproductive benefit.

Using the Yearworth framework as a basis, Justice Bennett balanced the rights of the donors over their sperm and the limitations of those rights imposed by legislation. Justice Bennett identified key factors of the agreement that indicated the sperm should be treated as property, namely that: the class members had ejaculated the sperm, contracted and paid for its storage for their future use, could terminate the storage agreement, and could transfer the sperm to their physicians or common-law spouses).

Furthermore, the class members maintained control over its use (they could exclude all others from using it or consent to it being donated to a third-party). Legislation did limit its use, but only with regards to its sale. Based on these factors, Justice Bennett concluded that “each of the donors had ample rights in relation to his own sperm specimen that invested him with ownership of that specimen sufficient to be defined as “property” and thus be “goods” under the WRA.

Impact of the Assisted Human Reproduction Act

The AHRA had very little impact on Justice Bennett’s ruling. In Yearworth, the court noted that interposing legislation (which came into effect upon storing the sperm) that “directed” the plaintiffs’ ability to use the sperm at a later did not interfere with their rights of ownership.

Much like the court did in Yearworth, Justice Bennett did not consider the AHRA to completely exclude the possibility of claiming a property interest in sperm. Justice Bennett’s treatment of this issue is the correct approach. The AHRA prevents sale of human reproductive material, like sperm, but does not restrict their donation. Although there are limits to ownership based on procurement through commercial trade, the AHRA is not necessarily inconsistent with all types of ownership. Accordingly, the AHRA should not affect whether human sperm is “property” or not.

The ruling reflects the reality that there are numerous statutes limiting a person’s ability to use his or her property that do not eliminate ownership of the item in question (such as, for example, legislation that limits when a landlord can evict a tenant, or dictates how a car may be used). If jurists considered ownership revoked any time a statute regulating its use came into existence, we would be hard-pressed to find any remaining instances of legal ownership.

A Decision on Narrow Grounds

Lam somewhat widens the scope of one’s rights to ownership over human reproductive material in Canada. Lam is preceded by a similar Supreme Court of British Columbia case, JCM v ANA, 2012 BCSC 584 [JCM], which dealt with competing property interests in human sperm from the perspective of family law. The court in JCM held that third-party reproductive material may be considered property for the purposes of dividing sperm straws following the dissolution of a common law spousal relationship. Lam, in contrast, dealt with a singular ownership interest, and provided direction as to whether that interest was legally recognizable in a contractual setting. The combination of these two cases therefore clarifies the contexts in which human reproductive material is considered property for legal purposes.

Nonetheless, Lam leaves many legal challenges unaddressed. The question of whether a person has ownership over his or her body tissue had been (and continues to be) intensely debated by medical and legal ethicists. Lam fails to address many of the broader issues surrounding ownership of biological material because it was decided on a narrow basis that abstains from commenting on how property interests in other human tissues, such as organs, should be approached. Justice Bennett defended her narrow ruling by commenting that, “the common law develops slowly and incrementally, adjusting as it must to societal changes, in terms of technological changes, cultural, social changes and advances in science.”

Furthermore, Justice Bennett declined the opportunity to clarify the types of property interests one may legally have with regards to reproductive material. Professor Tony Honoré has characterized the nature and scope of property interests as variable and consisting of eleven elements [AM Honoré, Making law bind: essays legal and philosophical (Oxford: Clarendon Press, 1987)]. These include, for example, the right to possess and use the owned object, as well as the rights to destroy the object, to derive income from the object, and the right of transmissibility over the object. They also include certain liabilities, such as a liability to execution, the legal responsibility of an owner to settle a debt with regards to transference of their property. Ownership constitutes a combination of these individual rights, but does not necessarily constitute all of them.

The facts of the case did not require an analysis extending to all of Honoré’s property rights, and Justice Bennett chose not to provide one. Thus, fundamental questions remain with regards to the extent we can demonstrate ownership over our bodies and their products. After all, if full ownership over our bodies includes a combination of Honoré’s individual property rights, where do we draw the line between which to include and which to exclude? Although a property right to possess one’s body may seem logical, the implications of recognizing other aspects of property rights are far‐reaching. For example, do we recognize one’s right to sell their body or body parts? Their right to destroy it? The right of others to seize them for non-payment of debts?

While I recognize the urgency and need for the common law to keep up with modern medicine, as the above issues demonstrate, the pursuit of legal answers must be tempered with respect for the moral significance of the issues being explored. If the law does not proceed carefully, and introduces a legal precedent that is too broad, unanticipated consequences may result. As Justice Bennett herself acknowledged, “Defining human sperm as property may bring with it a host of other legal rights and issues.

Uncertainty exists with respect to the contexts in which human sperm could be considered property, and it is necessary to carefully circumscribe the limitations of the definition in this case.” In light of the ethical challenges that ownership of human body material presents, it is necessary to craft the common law in a manner that is mindful of these challenges. The technological advances that have made it possible to store sperm for later reproductive use, were, at one time, unimaginable and squarely in the realm of science fiction.

Science fiction writers have also spilled a great deal of ink predicting undesirable repercussions that the advent of such technology may yield. By proceeding with precision and reflection, courts will hopefully be able to avoid the unintended, but not entirely unforeseeable, consequences a more expansive legal precedent on human tissue ownership could result in.

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