The case of Yearworth is finally beginning to attract a little bit more attention (here, here, here and here) in academic debate (with rather a lot of delay, I think). In this case, a number of men who were about to undergo cancer therapy were offered the possiblity to store their sperm with an NHS Trust. The idea was to preserve sperm in case the men lost their fertility as a result of the therapy. The NHS Trust in question then failed to top up a coolant required to stop the sperm from being damaged. The case was about the question of compensation for the men.
Intuitively, it seems clear that “a wrong” has occurred. The men had given their sperm to the NHS Trust for safe keeping and the Trust had failed to come up to the standard we would all be entitled to expect from an NHS Trust. In legal terms, we still have to work out exactly how the intuition of “a wrong” can be made into a decent case for compensation. Available avenues to pursue are, for example, that there was a contract between the individual men and the Trust and that the men were entitled to a service under this contract. Other possibilities are that the sperm was actually “property” and belonged to the men and the Trust’s dealings with this property had caused damage to it. An exotic third approach might be to argue that the sperm remained part of the men and damage to the sperm is then the same as damage to the men (i.e. a personal injury).
No proper contracts were concluded between the men and the Trust, so a clean contractual approach to getting compensation was unlikely. The property question was very risky because, in the past, the courts had been adamant that there can be no property rights in parts of our own bodies (they usually relied on a rather gruesome but entertaining Australian case called Doodeward v. Spence). The men’s lawyers argued that the sperm may have still been an integral part of their clients’ bodies and the damage to the sperm was therefore a personal injury (and they cited a German case where the highest German court had decided just this: BGHZ 124, 52, ‘Spermakonserve‘). That seems to be rather far-fetched and does not, by itself, lead to sufficient compensation but it was necessary as a backdrop to the whole action – it was supposed to constitute the Trust’s unlawful act which would set in motion the process of determining compensation. They also argued that when the men were told about the destruction of their sperm (and with the sperm their only chance of ever fathering a child), they suffered a shock – and this shock, they argued, entitled them to compensation for ‘psychiatric harm’.
The Court of Appeal, very plausibly, rejected the idea of the whole thing being a personal injury and the judges were quite open about their disdain for the German decision and the serious “limitations” of the German legal system which they saw as the reason for the decision. To the surprise of many, the court suggested to the lawyers that – given there was no proper contract in evidence, they might try the law of bailment. Bailment essentially means that something (property) is given to someone (bailee) for safe keeping. Where this is done without payment, it’s called ‘gratuitous bailment’. If the bailee fails to keep it safe, the person whose property it was is entitled to compensation. This compensation would then be closer to the kind of compensation you might expect to come from a contractual relationship – which is more attractive than relying only on the alleged psychiatric harm.
The sticking point is, of course, the question of property. For the purposes of making the law of bailment work in this case, the court would have had to concede that the sperm was capable of being the men’s property and that the Trust had failed to keep this property appropriately, leading to its destruction. Yet they did just that. Interestingly, some commentators criticise this approach and suggest that introducting a new kind of personal injury (reproductive injury) might be more suitable than a property approach. I felt, when reading the judgment, that the courts discussion of the property issue is, whilst superficial, a welcome first step into the right direction. It always seemed to be somewhat implausible to be discussing issues of modern biotechnology by referring to the Australian case I mentioned briefly above (which centred on the question of who the owner of a preserved two-headed foetus was which was displayed in a countryside circus).
In the end it is no more than that: a step in the right direction with the Court of Appeal acknowledging that property is a possible solution in certain cases. Because property is often linked to ideas of commercialisation and with that to slavery or exploitation (wrongly), it is often seen as undesirable. From a legal perspective, it is simply a mechanism which can explain and regulate, in great detail, relationships between people when it comes to movable things. In the greater debate on property in our bodies, the judgment is of very limited value. This is because the constellation is very narrow – it applies only to circumstances where individuals store sperm for their own use. The judgment can therefore not provide any answers to the question of property in cases where material is taken from a person for the use of someone else (such as for research, for example) – and this is where the really interesting problems lie. Because if we find that property may apply here, too, then it would be plausible to suggest that I can be compensated for parting with my material. As the law stands now, this isn’t possible. But whoever takes the material from me (arguably regardless of whether the taking is lawful or not) can profit – only I cannot.
Comments and corrections of my account of the issues in Yearworth very welcome.