In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful.
This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the sperm, and that compensation was thus due on the grounds that the men's property had been destroyed. We first argue that the claim is erroneous and enhances the tendency towards the commodification of body parts. We then suggest that the men could have been compensated for the harm done to them without granting property rights, and that this would, at least in philosophical and ethical terms, have been more appropriate. To help illustrate this, we draw on a parallel case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. Finally, we suggest some possible ethical and practical problems if the proprietary view expressed in the UK ruling were to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, a ‘no property in the body’ approach should be the default position in cases of detached bodily materials, the alternative being significantly ethically problematic.
- philosophical ethics
- philosophy of medicine
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This paper focuses on a recent case in the UK, in which six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm, losing in the first instance but subsequently having their claim upheld by the Court of Appeal.1 The claimants advanced their case to the Court of Appeal first on the grounds that they had suffered personal injury, second on the basis that their property had been damaged as a result of the Trust's negligence, and third on the basis that they had suffered losses due to breach of bailment conditions. The Court rejected the personal injury claim, but upheld those of property and bailment.
It is the second of these three judgements, or more specifically its conceptual basis in ‘ownership’ of property, that is our concern. We question the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the sperm, and that compensation was thus due on the grounds that the men's property had been destroyed. We argue that the judgement, which contravenes the ‘no property in the body’ principle, is ethically suspect, as it enhances the tendency towards the commodification of body parts. We then contend that employing the legal concept of property is not necessary for achieving justice in this particular case. We recognise that it circumvented certain difficulties in English law that blocked a claim on the basis of mental distress caused by negligence. But we argue that the ethical consequences are so troubling that, if legal compensation were to be awarded, it should not have been on these grounds, however expedient it may appear in this particular case. To illustrate this last point we draw on a similar case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. The final section of the paper suggests some of the potential ethical and practical problems of the proprietary view expressed in the Yearworth ruling were it to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, the ‘no property’ approach should be the default position in cases of detached bodily materials. Moreover, although this particular judgement seemed legally convenient and efficacious, its potential consequences render it undesirable.
Ownership of and property rights to bodily material
In this section, we discuss how the notion of property is employed problematically in the Yearworth judgement. We do not offer anything like a full account of the legal history of how the concept has been used,2 3 our aim being to focus on the ethical and practical implications in this case, but a brief contextual background to the judgement will help set the scene.
Bodies and their parts have in the past been seen in common law as res nullius—no one's thing—where the case of Doodeward versus Spence (1908) has previously been seen as marking this view, by way of providing the one clear exception to it. In Doodeward, the Australian court granted ownership of a stillborn two-headed fetus, judging that it was distinguished from being a corpse res nullius by virtue of its having been worked on—that is, preserved—by a third party. Now, significant in Yearworth is the appeal judges' explicit rejection of the Doodeward precedent as a criterion for assessing the claim to bodily property. In questioning the logic of deeming only those ‘body parts or products’ that have been ‘subject to the exercise of work or skill’ as property, the court clearly set its stall out in two ways. First, it headed off any claim by the NHS trust that it might have a contesting property claim on the sperm by virtue of having exercised skill in preserving it. Second, it made the plausible point that the principle was in any case no longer appropriate in cases of bodily materials stored by persons expressly for their own future usage, such as the case in Yearworth. In ruling in the men's favour, Lord Chief Justice, Lord Judge, made the proprietary basis of the judgement, and to whom it applied, quite clear, stating that ‘the men had ownership of the sperm’.4 Thus the proprietary claim was explicitly not advanced on the exceptional grounds founded in Doodeward. So, on what grounds was it advanced? This raises a number of legal and conceptual questions.
A first question is that of how the cryogenically stored sperm could be considered the men's property. Leaving aside the philosophical problem of how a person takes or relinquishes ownership of things that ‘are’ themselves, it is in a sense natural to think of the sperm as theirs, a substance that once occupied, and had been sustained by, the men's bodies and no one else's. This might also appear to support the thinking behind the Yearworth property judgement outlined in the previous paragraph, despite the res nullius tradition. Before advances in reproductive technologies, body parts, once detached from the body, were typically thereby no longer viable as part of a living organism and so were seen as items of waste. Nowadays, material such as sperm can be detached yet retain its potential for use in a way that previously it could not.
However, it is crucial that the conception of ‘property’ in the context of the Yearworth judgement explicitly presupposes that the material, while kept viable as sperm, is not ‘part of’ the men's bodies, and to this extent at least the judgement is consistent with the res nullius view. For, if what was at issue was the destruction of or damage to integral living parts or functions of person's bodies, then the case would be one of injury to persons rather than destruction of or damage to their property. This was made clear by the appeal judge's emphatically rejecting as ‘fiction’ the Yearworth counsel's initial appeal for compensation on grounds of personal injury.1
In this case, the property judgement instead describes a ‘bundle of rights’,1 a specific set of powers over and constraints on other's access that an agent holds regarding some object: a car, a piece of land or data in the case of ‘intellectual property’. On the bundle view, most famously developed and articulated by Tony Honoré,5 the concept of ‘property’ covers a number of such legal relations, none of which is singly necessary for property but a number of which may be sufficient. Honoré lists 11 such relations, and for the Yearworth case it will be useful to focus on three: those to (i) possess—‘have exclusive control of a thing or to have such control as the nature of the thing admits’; (ii) have personal use; (iii) manage—‘decide how and by whom the thing owned shall be used’. Clearly the ability to use the sperm they stored was most important to the men, and the judge's qualifying statement recognises this: ‘The sole object of their ejaculation of the sperm was that, in certain events, it might later be used.’4 Yet while the right to use can be understood as one stick in the property bundle, it does not need to be, and next we argue that invoking property is not in fact the best way to respect their wishes and rights or recognise and redress their loss.
To be clear, our claim is not that men had no right to decide on the future usage of the sperm they had stored. Indeed they may have such a right. The NHS explicitly agreed to store it on the men's behalf for the sole purpose of them using it in future, and as such the men had good reason to expect the Trust to facilitate this. Our claim is that deeming the damaged sperm the men's property is not the best way to recognise and implement such a right, particularly given the ethically dubious implications. First, it would be a mistake to suppose that, by itself, having a right to control, manage or make use of a thing in future necessitates that it is one's property. If a woman signs up for a course of private medical treatment, for example, she may thereby have a right to the future use of a particular quantity of whichever drugs are needed, yet this does not imply the drugs are her property such that compensation for their loss or destruction would legitimately be sought in terms of her losing her property. Hence it is not necessary to evoke ownership and property in assessing the legitimacy of compensation for the loss of future use or control of a material. Yet, second, nor is the proprietary view the least problematic one under which to think about compensation, given the details of the Yearworth case. For, by the nature of the material they are possessing and sustaining and the mutual agreement that they do so, the Trust became explicitly entitled and uniquely positioned to control and manage the expressed sperm. Hence, if a party's right to control, or their actual controlling of, the sperm entails that party's claim to property in it, then surely the Trust had such a claim too. (As has already been suggested, this problem was one reason for the court's specific rejection of the principle established in Doodeward.)
The key problem here is the confusion encouraged between the ‘integral’ conception of bodily property and the legal sense of a bundle of rights which supposedly arises from the men's relation to the stored sperm and the duty incurred by the NHS to maintain it. There is an intuitive temptation to mix the two conceptions, especially when we consider that the intended future usage of the sperm would have involved the men attempting to father ‘their’ children. But, as underlined by the Judge's correct rejection of the personal injury claim, once the sperm is outside of the body and is being cryogenically sustained, it is no longer a something that can be damaged or destroyed as a bodily material in this ‘integral’ sense. Turning then to the rights and powers conception, it is at best unclear that the men's legitimate power or right to control and manage future use of the sperm should thereby make it an object of their property on a legal, transferable understanding: or that whether, if it does, it would then become property that was shared or contestable by its sole controller or ‘keeper’, the NHS. Note, further, that even having exclusive use of something and its being integral to the body may not necessarily imply ownership of that thing. The air that a person inhales into their lungs meets both these conditions but is, nonetheless, res nullius.
Moreover, largely ignored in this judgement are additional losses that cannot be begun to be recognised on the property model, most obviously the personal emotional and psychological harms involved in what is lost. One reason for turning to the property route in this case, for example, may well have been the practical difficulty of pursuing damages on the basis of mental distress caused by negligence: in England and Wales such a claim requires provision of evidence of psychiatric damage such as mental illness, and this could not be provided in Yearworth. However, this legal difficulty—that legally recognising and compensating for the men's mental distress has to come down to either a property judgement or else the availability of clinically verified psychiatric damage—should not in our view have led to the property judgement. For at issue here is not the use of any replaceable or exchangeable thing such as a house or deeds to land, but sperm the men preserved only so as to maintain hope of future offspring. Thus it is difficult to see how deeming the material a transferable object of property captures what was really at stake—that is, what was lost, in the transaction.
Perhaps, as seems likely, the judgement was made primarily with the intention of preserving the men's autonomy—that is, in preserving the men's governance over their own persons and lives. After all, some significant project in the men's life—becoming fathers—was kept open as a possible viable option and then closed off by the action or omission of the NHS Trust. Thus granting the men ‘ownership’ of the sperm might be seen as the most appropriate or convenient way to capture and redress the erosion of autonomy that took place with its destruction.
In order to sustain this view, however, it seems that one would need to show either that respecting the men's autonomy in some way leads to the expressed sperm being their property, or that the erosion of their autonomy is in some way due to the destruction of their property. On the first direction—on which autonomy entails property—we have already shown that recognising facts about the frustration of the men's significant life projects, and thus the infringement of their control over their own lives, does not in any way suggest that the expressed sperm is their property. Properly respecting a principle of autonomy might involve recognising the men's rights with respect to the usage of the sperm. Yet, to reiterate, it is not clear that this would favour making the material in question an object of property, rather than seeking a way of properly recognising the significance of those projects and the gravity of their being thwarted. To argue successfully in the second direction—on which property entails autonomy—one would have to start with the notion that the sperm is the men's property and thus that the destruction of this property is what is thwarting its ‘owners’ autonomy. But that would start by assuming the truth of the very claim we have questioned. Autonomy is self ownership or control, and we cannot establish that the men's autonomy has been compromised by virtue of a violation of their property unless the sperm—now expressed and sustained by a third party—is in some sense already assumed to be just that: ‘part of them’ or theirs. Each of these autonomy-based arguments for the men having property in their sperm, then, is in different ways unsuccessful. As to the first approach, it does not follow that respecting the men's autonomy in this case leads to deeming the sperm their property. The second approach, by contrast, starts by assuming that the expressed sperm is their property, an assumption we have shown to be far from safe.
All in all, for the men in the Yearworth case, we think that there were more suitable and adequate ways to compensate them and respect their claims regarding the control and future use of the sperm they had stored. Moreover, however expedient in pursuing a negligence claim on the grounds of mental distress it may have been, the ethical and practical implications are so concerning that this approach should not have been chosen.
Implications: the commodification of body parts
Having given reasons why the property judgement was conceptually inappropriate to the men's losses and claim to compensation, we now turn to some of its wider implications, beginning with the topic of commodification of bodily parts.
Despite the problems raised in the previous section, it could still be maintained that identifying the destroyed sperm as the men's property is, procedurally, the most efficient way to recognise the legitimacy of the men's claim that the loss of the sperm was ‘consequent upon breach of the Trust's duty to take reasonable care of it’.1 However, we suggest that the judgement in terms of property exacerbates a further potential problem much deeper and wider than any it purports to solve, by facilitating a trend towards the commodification of body parts and, arguably, the commodification of persons. Briefly put in the present context, the worry about commodification6 7 is that talk of and judgements in terms of ownership in cases of this kind—even for good intentions and to bring justice—can encourage us to think of parts of people as things to be exchanged, sold and used all with the accompanying market rhetoric.6 Whether or not one shares the thought that treating body parts this way is ethically problematic per se, the tendency to commodification and some of the implications are especially poignant in Yearworth. For here a bodily material, detached from its body and maintained by a third party for entirely non-commercial or exchange purposes, has had its status as an item of transferable property retrospectively, and publicly, conferred by a legal authority before any such act of transfer or exchange has taken place, such as when a woman sells her ova to infertile couples. So the concern is that if there is a precedent set by this judgement, it allows that bodily material can effectively be deemed a commodity before any act of sale or transfer. Notice, then, that the objection is not that the property judgement sits at the top of a ‘slippery slope’ of legalising or decriminalising more and more commodificatory acts, such as the sale of ova, in the future. Rather, in our view, insofar as the Yearworth judgement and such acts are connected, the judgement is already squarely at the foot of that slope. For the Yearworth judgement itself commodifies a material that was never donated, harvested or stored with any view to it being or becoming transferable property, and hence a commodity, in the first place. Once again, too, it is doubtful that such commodification of the sperm is in step with the men's initial wishes for future children.
This ‘initial decree’ of commodification in the Yearworth judgement is a further reason why we reject the line of defence that, while the concept of property may be, strictly speaking, conceptually misapplied in this case, its applicability can nevertheless be redeemed to some extent by its practical simplicity or neatness. Next, we reject the defence that the property judgement, even if complicated and not very expedient, may be practically necessary, it being the only way of achieving justice. We illustrate by presenting the treatment of a similar case in French law. The decision over compensation for lost embryos and the basis on which it was made, along with the availability of different options for compensation, shows the way in which the property route is an unnecessary one to take.
The Douai case
In the Douai case a couple had stored some embryos in the gametes conservation section (CECOS) of a hospital, and some years later they received a letter from the hospital's administration informing them that their frozen embryos had been destroyed because of a power cut. The couple sued the hospital for damages. In response, the judges explicitly denied the couple any property rights to the embryos but did allow them financial compensation. The Court of Appeals of Douai, however, was stricter. On the basis of both articles 16-1 al. 3 and 16-5 of the Civil Code, the Court considered that embryos are subject to the principle of non-patrimonialité, meaning that they are not subject to any monetary evaluation. (‘Le corps humain, ses éléments et ses produits ne peuvent faire l'objet d' un droit patrimonial.’ (The human body, its elements and its products may not form the subject of a patrimonial right.)8 ‘Les conventions ayant pour effet de conférer une valeur patrimoniale au corps humain, à ses éléments ou à ses produits sont nulls.’ (Agreements that have the effect of bestowing a patrimonial value to the human body, its parts or products are void.)9)
Note that the French legislative point of view here reflects the general assumption that there is no property in the body—as a whole or in its parts—and at least as regards property it makes no distinction between embryos and gametes. To be sure, in French case law and doctrine, the two are sometimes viewed and treated as different from each other: for example, it is generally socially less acceptable to destroy embryos (in a course of a research project, for example) than gametes, because embryos are seen as human beings (although not as legal persons). Nevertheless, such a distinction was not drawn by the judges in the Douai case, as the embryos had already been destroyed and the aim of the Court was to say that they were neither persons nor objects in the sense of being subject to ‘patrimonialité’.
The Court went further, deeming that, as the couple were no longer themselves involved in a procreation process, this particular incidence of loss itself did not deprive them of the possibility of procreation. To explain: the couple tried to argue that it had lost the chance to become parents. ‘Loss of chance’ (perte de chance) is a way under French law to try to obtain damages when the causal link between the loss one suffers and the fault of a third party is unclear. For hypothetical example, Frank was not able to attend his bar exam because on his way there he was knocked down by a car. It is not straightforwardly the fault of the car driver that Frank failed to qualify as a barrister, but it is because of the accident that he lost his chance to take, and thus possibly pass, his exam. To be recognised as such, a perte de chance claim must have a minimum of tangibility—as it might in Frank's case. But in Douai, the Court denied this because, whereas Frank's wish to qualify as a barrister is clear cut and explicitly manifested in his electing to take the exam, the couple had not made clear their wish to become parents again. On this basis, the Court dismissed the couple's claim, refusing even the small compensation for their loss that the initial administrative tribunal had awarded.10
So, the Douai case is an example of a legal approach that explicitly denies the appropriateness of property judgements in circumstances similar to those of Yearworth, hence underlining the non-necessity of evoking property in such rulings. But what are we to make of the ultimate denial of any sort of compensation in this case? It could be argued that, in rejecting the claim altogether on the basis of non-patrimonialité, the appeals court displayed an overly zealous interpretation of the French Civil Code that embodies that principle. What the legislator had in mind when writing those articles was prohibiting the sale of bodily materials for profit, and this is why donation of bodily materials must be gratuitous in French law. Hence, the appeal judges may have overlooked the possibility of a legitimate compensation claim on some other non-proprietary basis, and we return to this point in the next paragraph. However, for now it is crucial to see that the Douai decision expresses a central idea in French law: human bodily resources themselves do not belong to the market. In direct contrast with the English judges, the French ones did not even open the door to the proprietary argument.
As to the possibility of non-proprietary compensation just mentioned, it should be noted that French tort law is far from hostile to compensation claims generally, since it has a broad conception of harm. So, for example, in a recent different case, the court of cassation awarded compensation to a patient who had become impotent as a result of prostate surgery, on the grounds that the risk of this outcome had not been unveiled by doctors before the operation.11 Now, what this indicates is that tort law could have been used to justify a compensation claim in just the sense we have suggested might be more apt in the Yearworth case—that is, without the use of property law. Similarly, adherence to the no property principle need not have precluded compensation in the Douai case, even though it was, actually, ultimately denied.
The consistent application of the non-patrimonialité principle in French law also echoes the earlier point about the wider implications of departing from the ‘no property in the body’ position. As we have seen, the fact that the Yearworth plaintiffs expected their expressed sperm to be returned for their use is the stated justification for making it their property in the legal sense. Thus the distinguishing criterion for making the sperm the men's property is the expectation of restitution. But in the wider legal context the vast majority of donations of human body parts and products today take place independently of any such expectation. As we go on to discuss next, collections of biological samples for treatment or research are a key case in point, but for now consider the simpler example of a donation to a hospital blood bank. Certain rights and expectations over future use of the blood surely obtain just as they do in the Yearworth case, but here it is difficult to see why the reasonable expectation of restitution, rather than use, might be the deciding factor in which detached bodily materials can or cannot be owned as property. To take the detour of property law only in cases where materials are intended for the donor's future use fails to enjoin a consistent legal approach to donated bodily material: one that is simultaneously respectful of the individuals and the communities involved. Once again, one can have use of, and should have access to, resources without having to be declared the owner of them in the legal sense.
The example of biobanking
We have denied the conceptual suitability of the property-based judgement in the Yearworth appeal, raised some worries about the ‘commodification by decree’ of bodily material, and denied that such an approach is either necessary or expedient in legal procedural terms. Still it may be asked, even if these worries are well founded, what would really be so socially disastrous about property claims becoming standard in cases of transferring bodily materials, were this to happen? To finish, let us briefly emphasise the urgency of not heading down the proprietary route by using the example of biobank research.
A biobank stores genetic samples of human tissue for research and therapeutic purposes, often on a large scale and for projects that are ongoing or even not yet conceived. This means that what will happen to these samples and what will result from research in which they figure is to a large extent as yet unforeseen, prompting ethical questions about the nature of tissue donors' consent and the jurisdiction of the biobanks and other research institutions that may use the materials stored by the biobank.
If in the case of biobanks we were to apply the Yearworth judgement's explicit conception of property as a bundle of rights concerned with possession, control and the power over future usage of material, together with the possibility that in principle the NHS could have made some kind of property claim over the sperm they kept viable, we can begin to see some of the worries regarding the consequences of setting such a precedent. In the relatively new field of biobanking ethics and governance, what has so far been discussed in terms of, for example, a participant's right to ‘withdraw’ from a research project, or their consent for their samples to be used, may now be and conceived and cast in the language of who has ownership of the genetic material. This, for instance, could warrant competing claims from a research institution and a donor over genetic samples, the donor claiming to retain property rights, and the institution claiming that he/she has transferred their property to the biobank, which in turn has done so to the research institution. This is only one small example of a potential web of problems, as biobanks serve as a resource for other research institutions, which in turn store and study genetic materials in partnership with other researchers, and make use of their data. Consider also that, if initial participants could be the ‘owners’ of their samples, in the sense of having rights and claims to them as property, then the potential number and scale of the problems would not be difficult to imagine. Perhaps this particular problem could be dissolved by assuming a strict concept of bodily property, such that donors to biobanks waive all of their rights to any genetic material transferred. Perhaps, but then in that case it would appear that a much wider range of donor's rights and control over their participation in biobank research would dissolve along with it. And again, we contend that such potential dangers of adopting the property model tell against the Yearworth ruling.
The property judgement in the Yearworth case may initially appear to express and respond to the dereliction of duty that the NHS had to the men and the expectations that the men had regarding the sperm they expressed, and it may appear to do so via the best available legal means. However, when we consider more carefully both the basis and implications of the judgement, it does not seem that the property ruling properly recognised the harm done to these men. Moreover the consequences of setting such a precedent could go well beyond what was envisaged in that particular case. A brief look at the example of biobanks highlights further reasons to doubt the wisdom of this position, particularly as the problems of property in biobanks is exacerbated by the need for them to be accessed and utilised by numerous third parties.12 Given these conceptual and practical considerations, the starting position in legal cases of this kind would best be the assumption of no property in the body—res nullius—where this should not be contravened without good reason. In the Yearworth case, there are no such reasons but there are, as we have argued, good reasons not to contravene it.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.