UK: Whose Body Is It Anyway...?

Last Updated: 24 February 2009
Article by Ben Troke

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 Appeal's intervention is already very significant.

Lord Justice Judge reviewed centuries of case law, noting the general rule that there is no property right or ownership over human bodies or body parts, either in life or death. Dead bodies should be buried as soon as possible without scope for legal squabbles, and the living belonged to God alone. An exception has developed where something has been done to a dead body part that changes its physical attributes, allowing for example, the law of theft to protect body parts preserved for science or public display. However, the Court was not content to rely on this and went very much further, holding that "developments in medical science now require a re-analysis of the common law's treatment of, and approach to, the issue of ownership of parts or products of a living human body...".

Clearly this potentially goes far wider than the instant case of donated sperm. Biotechnology now means that human tissue may have enormous commercial value, as for instance in a famous US case, where a patient failed to establish any commercial rights over a very lucrative stem cell line, developed from his excised spleen, which was used under patent for leukaemia research. Developing transplantation practice means that organs are now traded for large sums of money, though it remains illegal to sell a kidney in the UK. Why should this remain the case if we are to start treating the human body in more proprietorial terms? The idea of ownership of our organs certainly sits better with the current insistence on express consent for donation, even after death.

The commercialisation of the human body is a long term trend, but more immediately the judgment may cause concern for all parts of the NHS, not just fertility clinics. Hospitals are full of body parts, from retained organs for research through to tiny tissue samples, and though the facts of this case are very specific, it is not comforting to think that the Courts may be ready to consider some of these as still being the property of their donors.

This is especially true as defendants had applauded the first instance judgment in this case as a welcome and all too rare demonstration that not every breach of duty would sound in damages. As with a number of other recent cases, notably Chester v Afshar, where the House of Lords allowed compensation for a failure in taking consent even though this made no difference at all to the outcome, the Appeal Courts seem to have other ideas.

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.

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