Cancer patients' compensation claim for lost sperm reaches Court of Appeal

A group of legal claims over sperm samples lost due to a freezer breakdown in 2003 last week reached the Court of Appeal in London. Five men and the widow of a sixth are seeking compensation in respect of the lost sperm samples, which were taken before cancer treatments which have left several of the men infertile and the others unlikely to regain their fertility.

The equipment failure occurred at Southmead Hospital in Bristol and led to claims in negligence being brought by six parties against North Bristol NHS Trust. The claims were rejected on their first hearing, in March of this year, on the basis that sperm donations are no longer a part of a patient's body. In his ruling, His Honour Judge Jeremy Griggs, stated that the sperm was no more a part of the claimants' bodies than cut hair or toenail clippings and likened the saving of sperm to the removal of hair with the intention of making a wig to mask hair loss. As sperm could no longer be treated as a part of an individual once outside of the body it was concluded that its destruction did not amount to a personal injury (nor was it deemed to be property that could give raise to a claim for damages).

The appeal, heard over two days at the beginning of last week, was argued on the basis that the destroyed sperm was 'living and biologically active, albeit in a suspended state' and that it could still be used for the same purpose as if it had remained in the claimant's bodies. North Bristol NHS Trust has admitted that they breached their duty of care to the patients.

Due to the potentially significant implications of expanding the scope of personal injury law the appeal was heard before the Head of the Judiciary of England and Wales, Lord Chief Justice, Lord Judge; the most senior Civil Judge, Master of the Rolls, Sir Anthony Clarke; and Court of Appeal Judge, Lord Justice Wilson.

Counsel for the six claimants stated that the original trial judge's comparisons of the sperm to toenail clippings and hair cut off by a barber was not entirely apt and added that while a wig made of rescued hair would be no more a part of the body than a lambs-wool sweater, sperm samples are still functional in their original form and are merely awaiting further use. Counsel for North Bristol NHS Trust argued that the sperm was not property (as understood by the law), that it could not be owned and that to damage it was not to harm the original donor. Judgment on the appeal will be given at a later date.