Canada: Human Tissues As Moveable Property

The question of whether persons have ownership of their samples or body specimens has been a topic of legal debate for a considerable time. However, it now appears the law has developed incrementally to adjust to cultural and social changes and advances in science.  

Already in 2004, Canada adopted the Assisted Human Reproduction Act. The federal act also regulated inter alia, the use that could be made of human fluids and samples such as sperm and ova.  This federal law declared that, "Trade of reproductive capabilities [...] for commercial ends raises health and ethical concerns," and to that end prohibited payment for donating human gametes – without, however, prohibiting Canadians from importing gametes from commercial entities outside of Canada – and proscribed any purchase or offer to purchase gametes.  

Re-assessment by provincial courts

Seemingly, this position would have put an end to "ownership" issues as traditionally understood with respect to body samples or biological specimens. Yet, Canadian provincial courts have recently asserted that medical sciences have evolved to the point where the common law requires a rethinking and re-analysis of the approach to the issue of ownership of products of the human body, and concluded that the foregoing can constitute a form of "property." 

BC rulings

For instance, in Lam v University of British Columbia, the Court of Appeal had to determine whether patients can have ownership of the sperm they produced, such that they can conclude a facility agreement for its storage to enable later personal use. In that respect, the court held that, "Medical science had advanced to the point where sperm could be considered to be property," such as for the purposes of the Warehouse Receipt Act, and accordingly that sperm was capable of being owned.

The fact the parties did not contemplate the application of this act when they signed the facility agreement, that the act was not – in the light of its historical context – intended to apply to storing human samples, and that a federal law dealt differently with such specimens and further, that not all incidents of ownership were present with these specimens, did not prevent the court from concluding as such. Instead, the court stressed that broad statutory categories can be held to include things unknown when a statute was passed. In the court's view, the plain meaning of "goods" included human sperm, and nothing in the act suggested the need to reframe that term's definition.

To reach this conclusion, the court construed the relevant statutory provisions according to a textual, contextual and purposive analysis. In doing so, the court distinguished the issue before it from the Supreme Court of Canada's 2002 ruling in Harvard College. The court emphasized that even if a statute may limit a person's ability to use his or her property, such limitation should not be interpreted as denying all rights of ownership, thereby upholding property as a bundle of rights.

Another example is found in J.C.M. v A.N.A. In that case, the claimant was seeking a declaration that the sperm straws stored at a clinic in BC were her sole property. This request was made pursuant to the Supreme Court of Family Rules, after the claimant and the respondent entered into a separation agreement that failed to divide the straws purchased from a third party.

After careful consideration of the authorities provided, the Supreme Court of British Columbia declared it was "persuaded that on the facts of this case the sperm straws [...] should be treated as property and divided between the claimant and respondent as such." The court's ruling was based on the fact that: (i) the sperm has been treated as property by everyone; (ii) the sperm has been purchased; and (iii) the moral objections to the commercialization of reproduction or the commoditization of the body were made after significant time has passed. According to the court, a person shall be able to own property even if not entitled to sell it.

Ontario decision

Finally, in Piljak Estate v Abraham, the defendants moved under Rule 32.01 of the Rules of Civil Procedure of Ontario (pertaining to the inspection of property) for the genetic testing of liver tissue taken from a patient since deceased. This application raised the question as to whether excised human tissue was personal property within the meaning of that rule.

Since no jurisprudence has been rendered on that point, the court relied on a Canadian Medical Association Journal article dealing with rights to access excised human tissue. For human tissue excised for diagnostic purposes and obtained in a procedure for patient care, the authors opined that such tissue shall be owned by the institution or hospital performing the intervention. In that respect, the authors stressed that while, "It is unquestionably true that patients own their tissue before it is excised," diagnostic tissue once excised becomes pursuant to applicable laws a "component of the medical record."

Accordingly, as both possession and ownership are transferred to the hospital or institution, then the tissue could no longer be owned by the patient, who can have, at best, "reasonable access" to it. In view of the foregoing, and since human tissue it is clearly moveable, the court concluded that human tissue constituted a form of personal property to which inspection and testing under Rule 32.01 may apply.

Who can own body specimens and samples

In view of these recent decisions, it appears that samples and specimens constitute a type of "moveable property" capable of being owned. In this respect, the law espouses modern science. This avoids legal aberrations where, for instance: (i) someone stealing sperm in a lab could not be charged with theft, as theft is a crime against property; (ii) people could not validly donate their body fluids such as blood, or could claim them back afterward; or (iii) cancer patients could not cut and store their hair to later make a wig, as they would not "own" their hair. Thus, it appears the uncertainty with samples and tissues does not rely on whether they can be considered as "property" or capable of being "owned," or in which contexts human samples can be considered as moveable property, but rather on determining by whom they can be owned in different contexts.

For medical care, clinical trials or research, it will be interesting to see if Canadian courts adopt the same approach as American courts and hold that automatic transfers of ownership occur when samples or tissues are submitted in these contexts, thus assimilating sampling procedures to an irrevocable donation rather than any form of temporary disposition.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions