The British Columbia Court of Appeal recently upheld a trial judge’s decision that human sperm is property. The case involved a B.C. man who was a representative for a class action of 400 plaintiffs who had stored their sperm with a laboratory at the University of British Columbia prior to undergoing treatment for cancer. The lab’s freezing mechanism failed, damaging the sperm and destroying its genetic properties. UBC relied on a limitation of liability clause in its Sperm Bank Facility Agreement, stating it was not responsible for damage caused by improper storage, maintenance or freezing. The plaintiff took another tack: he argued that UBC could not rely on the clause because of the provincial Warehouse Receipt Act. This law states that “warehousers” can’t rely on clauses that limit their obligation to use due care and diligence with regard to “all property other than things in action, money and land.” The trial judge noted that the human body has not been “property” since slavery was abolished. However, there are exceptions to this rule, and in this case the judge ruled that sperm is property. She listed as factors indicating that sperm should be regarded as property: the plaintiffs
- produced the sperm;
- contracted and paid for its storage for their future use;
- could terminate the storage agreement;
- could transfer the sperm to their physicians or spouses;
- maintained control over its use.
Simple rights in relation to his own sperm specimen that invested him with ownership of that specimen sufficient to be defined as ‘property’ and thus be ‘goods’ under the WRA.” Because she made her ruling under the Warehouse Receipts Act, she did not address the interesting ethical and legal questions that the Assisted Human Reproduction Act might have raised.