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Whose body is it anyway… ?
11 February 2009
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.
talk to us
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Simon Tait
0115 976 6559/0121 237 3913
Partner and Head of Health
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