Genetic Material As Property: Rethinking The Common Law View

People draft wills to set out their wishes for how their property is to be distributed after they die. Certain items – such as money, real estate, or jewellery – are easily identifiable as "property", and are specifically thought of and addressed when wills are drafted. However, other items are less clearly "property". Take, for example, genetic material stored for assisted human reproduction, such as frozen sperm samples. Is this "property" that would form part of one's estate and be affected by the terms of the will? Recent case law indicates that the answer to this question is "yes".

In a recent decision of the Supreme Court of British Columbia, J.C.M. v. A.N.A., 2012 BCSC 584, it was held that, on the facts of the case, sperm straws (vials of donated sperm) were to be treated as "property" for the purpose of dividing them between two separating spouses upon the dissolution of their spousal relationship.

J.C.M. and A.N.A. commenced a spousal relationship in 1998, and had two children using sperm provided by a single sperm donor. A.N.A. gave birth to their first child, and J.C.M. gave birth to their second. The couple separated in 2006, and entered into a separation agreement in 2007. The agreement divided the property between them, but the sperm straws inadvertently were not addressed in the agreement.

J.C.M. wanted to have a child with her new spouse, and contacted A.N.A. to offer to purchase what she determined to be A.N.A.'s half-interest in the remaining sperm straws. A.N.A., however, expressed her preference that the sperm straws be destroyed, and refused to consent to the release of the sperm straws from the bank in which they were being stored. J.C.M. commenced an application for an order declaring the sperm straws to be her sole property, while A.N.A. opposed and requested that the sperm straws be destroyed.

A.N.A. raised various moral arguments as to why sperm should not be treated as property. The common law had historically taken the view that human beings, or their body parts or products, could not be considered property. However, the application judge reviewed recent case law, and expressed agreement with the theme in those cases that medical science has advanced to a point where this common law view requires rethinking.

One of the recent cases reviewed by the court was the U.K. case of Jonathan Yearworth & Ors v. North Bristol NHS Trust, [2009] EWCA Civ 37. In this case, six men who had stored...