Whose Body Is It Anyway...?

A Court of Appeal judgment may have far reaching consequences

for medical law, compensation claims and commercial relationships

as regards the 'ownership' of body parts and material.

The judgment of the Court of Appeal in Yearworth v North

Bristol NHS Trust, handed down on 4 February 2009, has no

doubt attracted most media attention because it concerns a claim

for compensation arising from an NHS Trust's negligent failure

to store sperm, donated by six men for use after their cancer

treatment. But it is an extraordinary case for a number of other

reasons, and may have implications that will concern every aspect

of the relationship between the law and human bodies.

Mr Yearworth, and five other men, claimed compensation for

psychiatric injuries and distress as a result of the destruction of

their donated sperm when the Trust's freezer was negligently

allowed to run low on liquid nitrogen. The injury and value of

these claims was on any view very limited.

The County Court Judge rejected their claims on the grounds that

though the Trust admitted negligence, there was neither a personal

injury nor damage to property to entitle recovery of

compensation.

The Court of Appeal agreed that it would be a fiction to pretend

that there was a 'personal injury', but unanimously held

that the sperm should be considered to have been the men's

'property' for these purposes. Although the sperm was not

in the men's possession and could not be used simply as they

directed (due to the restrictions under the Human Fertilisation and

Embryology Authority licensing and legislation), it could not be

used in any way at all without their consent, and this was a

cardinal feature of ownership. Referring to 18th and 19th Century

case law on bailment, the Court held that although the Trust was

not obliged to accept responsibility for storing the sperm, having

done so, it must take reasonable care. This may seem a little harsh

on the Trust, since the donation and storage of the sperm was an

integral part of the clinical treatment offered.

Even if this arrangement has no charge which might give rise to

a contract, the Court of Appeal noted that damages for breach of

bailment are akin to breach of contract, and so may be more

generous than damages for negligence.

The case has been sent back to the County Court for the men to

prove that any psychiatric injuries are the foreseeable result of

the Trust's breach of duty, and to prove the extent of their

losses, but the Court of...