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...
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