West Law Report

Supplier of sperm sample has property interest in it

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 10, 2009

Supplier of sperm sample has property interest in it
Court of Appeal
Published February 10, 2009
Yearworth and Others v North Bristol NHS Trust
Before Lord Judge, Lord Chief Justice, Sir Anthony Clarke. Master of the Rolls and Lord Justice Wilson
Judgment February 4, 2009

A sample of sperm from a person undergoing chemotherapy, which a hospital stored in case he became infertile after the treatment, was that person’s property and its loss or damage was capable of establishing a claim in negligence.

Further, where the hospital’s storage was undertaken gratuitously in the sense that it was a bailee of the sperm, any breach of duty in its safe storage causing loss or damage entitled the owner to recover damages in bailment for psychiatric injury and/or mental distress.

The Court of Appeal so held in a reserved judgment when it allowed the appeal of the claimants, Jonathan Yearworth, James Denslow, Martin Lee, Paul Ritchie, Julie Smith, as executrix of Jeremy Michael Smith, and Christopher Waddleton, against the judgment of Judge Griggs in Exeter County Court on March 12, 2008, when he held, inter alia, on preliminary issues that the claimants’ sperm samples were not owned by them, and that they were not entitled to damages for loss of or damage to the samples or in respect of psychiatric injury. The Court of Appeal remitted the case to the county court for determination of further factual matters. Mr James Townsend for the claimants; Mr Nicolas Stallworthy for North Bristol NHS Trust.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that, after the claimants were diagnosed with cancer, they took the advice of doctors at Southmead Hospital, Bristol, where they were due to receive chemotherapy, to produce samples of sperm for storage in liquid nitrogen at the hospital in the event the treatment made them infertile.

Between June 28 and 29, 2003, the liquid nitrogen fell below the requisite level, the semen thawed and, on the facts as assumed, the sperm perished.

The claimants brought claims in negligence. The trust, while admitting it had a duty to take reasonable care of the sperm, and that it breached that duty when the operation of its storage facility failed, denied liability.

His Lordship said that the judge rightly held that damage to, and consequential loss of the sperm did not constitute personal injury. It would be a fiction to hold that damage to a substance generated by a person’s body, inflicted after it was removed for storage purposes, constituted a bodily or personal injury to him.

A person had to have either legal ownership of, or possessory title to property when damage occurred in order to claim for loss or damage to it. Until recently, the law had been silent as to ownership of parts or products of a living human body, probably because medical science did not endow them with any value or significance.

The claimants’ rights to use of the sperm samples was limited to an extent by conditions imposed by the Human Fertilisation and Embryology Act 1990. But the limit of their ability to direct use of their samples did not derogate from their ownership of them.

By its provisions as to consent, the 1990 Act preserved the claimants’ negative control over use of the samples: their ability to direct that the sperm should be not used in a certain way.

Although the Act confined storage to licence holders, the trust in the present case, the significance of such an inroad into the normal consequences of ownership, driven by public policy, was much diminished by the claimants’ control, reflected in the fact that the sperm could not be stored without their subsisting consent.

Thus, while the licensee had duties which might conflict with the claimants’ wishes, for example in respect of destruction of the sperm on expiry of the maximum storage period, no person, whether human or corporate, other than each claimant had any rights in relation to the sperm which he had produced.

Thus, for the purposes of their negligence claims, the claimants had ownership of the sperm which they had ejaculated.

Having considered principles as to the law on bailment, the court concluded on the facts as already known, that there was a bailment of the sperm to the trust capable of rendering it liable also under the law of bailment.

The arrangements between the claimants and the trust for the storage were closely akin to contracts and should fall within the ambit of the principles in respect of breach of contract established in cases such as Jarvis v Swans Tours Ltd ([1973] QB 233) and Farley v Skinner ([2002] 2 AC 732).

The arrangements were not in any way commercial. Their object was, only too obviously, the provision to the claimants of nonpecuniary personal or family benefits.

The breach of bailment, in the present case, was a breach not just of the duty owed by every gratuitous bailee, but of a specific promise extended by the trust to the claimants. The law of bailment provided them with a remedy under which, in principle, they were entitled to compensation for any psychiatric injury, or actionable distress, foreseeably consequent upon the breach. Solicitors: Foot Anstey, Exeter; Beachcroft LLP, Bristol.

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