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Lost property? Legal compensation for destroyed sperm: a reflection and comparison drawing on UK and French legal perspectives

Cordell, Sean; Bellivier, Florence; Widdows, Heather and Noiville, Christine (2011). Lost property? Legal compensation for destroyed sperm: a reflection and comparison drawing on UK and French legal perspectives. Journal of Medical Ethics, 37(12) pp. 747–751.

DOI (Digital Object Identifier) Link: https://doi.org/10.1136/jme.2010.042036
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Abstract

In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful. This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the sperm, and that compensation was thus due on the grounds that the men’s property had been destroyed. We first argue that the claim is erroneous and enhances the tendency towards the commodification of body parts. We then suggest that the men could have been compensated for the harm done to them without granting property rights, and that this would, at least in philosophical and ethical terms, have been more appropriate. To help illustrate this, we draw on a parallel case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. Finally, we suggest some possible ethical and practical problems if the proprietary view expressed in the UK ruling were to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, a ‘no property in the body’ approach should be the default position in cases of detached bodily materials, the alternative being significantly ethically problematic.

Item Type: Journal Item
Copyright Holders: 2101 BMJ Publishing Group Ltd. & Institute of Medical Ethics
ISSN: 1473-4257
Academic Unit/School: Faculty of Arts and Social Sciences (FASS) > Politics, Philosophy, Economics, Development, Geography > Philosophy
Faculty of Arts and Social Sciences (FASS) > Politics, Philosophy, Economics, Development, Geography
Faculty of Arts and Social Sciences (FASS)
Item ID: 38695
Depositing User: Sean Cordell
Date Deposited: 09 Oct 2013 10:35
Last Modified: 15 Apr 2019 16:30
URI: http://oro.open.ac.uk/id/eprint/38695
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