Canada sperm property case to settle for $6.2 million

The University of British Columbia has proposed to settle a class action involving the accidental destruction of sperm for $6.2 million, reports The Province. The case represents the first time sperm has been recognised in law as property in the jurisdiction.

Around 400 men, mostly cancer patients, had deposited their sperm with the UBC's Andrology Lab before undergoing cancer treatment, which can affect fertility. However, in 2002 the freezer housing the sperm malfunctioned after a power interruption, and most of the sperm was damaged or destroyed. For some of the men it represented their last chance to have a genetically related child.

A class action against UBC and others was launched in 2003 in negligence and breach of contract. Lawyers for UBC tried to argue that under its contract with the men it was exempt from liability, but the claimants countered that this could not be relied on because of statutory provisions governing the storage of goods that rendered such exemptions unenforceable. The issue was whether frozen human sperm could be defined as 'property' under the statute.

On this point, the Court of Appeal of British Columbia in January decided in the claimants' favour, ruling that human sperm could be 'property' and therefore considered as goods under the statutory provisions.

Referring to a case against North Bristol NHS Trust in the UK in 2009, where the Court of Appeal said that sperm could be property for the purposes of claims brought by cancer patients after their sperm was accidentally destroyed in a storage malfunction, Justice Elizabeth Bennett held that the men in this case had also deposited their own sperm with the intention of future use by arrangement with the storage facility.

For these reasons, and because the men retained 'control' over the sperm - being able to terminate its storage or donate it to others - the sperm was regarded as their 'property'.

Commenting on the proposed settlement, which is yet to be approved by the state's Supreme Court later this month, Sandy Kovacs, a lawyer for the claimants, said: 'It provides fair compensation for men who have suffered the loss of ability to have children of their own.' 

A spokesperson for UBC said: 'The university recognises this was an unfortunate incident and we empathise greatly with the men and their families involved in this case.'