Lost property? Legal compensation for destroyed sperm: a reflection and comparison drawing on UK and French perspectives.

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.

Yearworth v. North Bristol NHS trust: a property case of uncertain significance?

It has long been the position in law that, subject to some minor but important exceptions, property cannot be held in the human body, whether living or dead. In the recent case of Yearworth and Others v North Bristol NHS Trust, however, the Court of Appeal for England and Wales revisited the property debate and threw into doubt a number of doctrines with respect to property and the body. This brief article analyses Yearworth, (1) reviewing the facts and the Court's decision with respect to the originators' proprietary and contractual interests in their body and bodily products, (2) considering the significance of relying on property and its use a legal metaphor, (3) questioning the scope of the property right created, and (4) querying whether an alternate conceptual approach to extending rights and a remedy was warranted. It concludes that, while Yearworth engages with, and impacts on, important theoretical and practical issues--from legal, healthcare and research perspectives--it does not offer a great deal of guidance and, for that reason, its precedential significance is in doubt.

Gaining consent to freeze spermatozoa from adolescents with cancer: legal, ethical and practical aspects.

Sperm banking for early adolescent cancer patients requires delicate, sensitive handling and, in the UK, consideration is required of statutory elements. No information at present exists about how adolescents with cancer are normally treated or counselled for sperm banking. Here we highlight the type of issues in relation to fertility preservation faced by clinicians and those faced by adolescents at a sperm storage laboratory. We explore the very real difficulties of bringing together these medical fields of assisted reproduction, oncology and the various pieces of legislation and focus specifically on gaining consent. Attention is paid to counselling and communication to help the patient reach an effective and informed decision to store spermatozoa. The role of parents in contributing towards communication and support, together with the legal constraints in decision making, is acknowledged. How absolute and fully 'informed' consent should be will always remain a contentious issue amongst the various specialists and disciplines. In relation to sperm storage, as a minimum the patients should understand the process that they are undertaking so that it is undertaken freely and without pressure. The practical approach to gaining consent that we are using seems a logical and practical method to help early adolescent patients to store spermatozoa.

Sperm banking: is it a viable option for cancer patients?

Should cryopreservation be routinely offered to cancer patients undergoing therapy that could eventually cause gonadal damage, even if their semen is suboptimal? The possibilities for successful reproductive outcomes are encouraging for cancer patients whose complete loss of fertility would otherwise occur. Although many technical, legal, and ethical considerations remain, failure to appraise patients of reproductive options that are available to them is a violation of patient autonomy.