Are there any additional types of human bodily material that could raise ethical concerns?
Our belief is not so much that there are additional types of human bodily material that could raise ethical concerns, but rather that types of human bodily material can be distinguished and categorised in ways other than those used in the consultation paper.
For instance, human bodily material can be organised according to prevalent social attitudes. Such an approach might give us three categories. First, ontologically significant material (for example whole organs and gametes), which elicits high levels of public concern. Second, ontologically neutral material (such as hair and nail clippings), which elicits low levels of public concern. Third, ontologically repugnant material (such as urine and faeces), which elicits little or no public concern as long as it is efficiently disposed of.
These categories relate to the ethical weight commonly attached to bodily material, and to the corresponding ways in which relevant public policy is developed. For example, ontologically neutral and ontologically repugnant materials are often regarded as property for purchase and sale, with little objection.
The law has recognised that regenerative body materials such as hair (see the UK's 1961 case R v Herbert) and urine (see the UK's 1974 case R v Welsh) can be the subject of property rights and are capable of being stolen. By contrast, ontologically significant material tends to be expressly prohibited from proprietary status (see the USA's 1990 case Moore v Regents of University of California, and the provisions of the UK's Human Tissue Act 2004).
In the UK's 2009 case Yearworth and others v North Bristol NHS Trust, the Court of Appeal found in favour of six patients, in a group of legal claims made over sperm donations lost due to a freezer breakdown at Southmead Hospital in 2003. Five men and the widow of a sixth man sought compensation over sperm samples which were obtained before infertility-inducing cancer treatments, and were lost due to the negligent actions of North Bristol NHS Trust.
The patients' claims were originally rejected at Exeter County Court, on the basis that sperm donations are no longer a part of a patient's body and can be likened to toenail clippings or cut hair. But the Court of Appeal overturned that decision.
The Court of Appeal held that to claim for loss or damage to property, a person must have had either legal ownership of, or a possessory title to, the property when damage occurred. The law has, to some extent, been refined in relation ownership of both an entire human corpse and parts of a human corpse . But the law has been silent about parts or products of a living human body, probably due to the fact that until recently, science and medicine did not endow parts or products of a living human body with any value or significance.
According to the Court of Appeal, developments in science and medicine require a reanalysis of the common law's treatment of and approach to ownership of parts or products of a human body, whether for an action in negligence or otherwise. For the purposes of their negligence claims, the claimants in Yearworth v North Bristol NHS Trust had ownership of the sperm which they had ejaculated - the sole object of which had been that, in certain events, it might later be used for their benefit.
The patients' rights to use of the sperm were limited to an extent, by the conditions within the UK's Human Fertilisation and Embryology Act 1990. But the absence of the patients' ability to direct the use of the sperm did not derogate from their ownership of it. By its provisions for consent, the Act assiduously preserved the claimants' ability to direct that the sperm was not to be used in a certain way.
While the licence holder (the hospital) had duties which might conflict with the claimants' wishes, no person (whether human or corporate) other than each claimant had any rights in relation to the sperm produced. On the facts as known there was bailment of the sperm by the claimants to the hospital unit, and (subject to resolution of factual matters) the unit was liable under the law of bailment as well as under that of tort.
More generally, the ruling means that those who give sperm samples before they become infertile can rely on the promise to maintain their sample. This ruling represents a significant enhancement of the legal status of patients with respect to their donated gametes. Donated gametes are now legally considered to remain the property of the donor so long as it is the donor's intention to have the sample retained (allowing for statutory limits on storage). As the judgment states: 'The sperm retained a significant property, namely that, although...suspended by having been frozen, it remained in essence biologically active, a living nexus with the men whose bodies had generated it.'
These ontological attitudes are subject to change. For example, umbilical cord blood was previously routinely disposed of and considered ontologically neutral, whereas it is now clinically valuable and therefore ontologically significant (see the journal article 'Umbilical Cords: Turning Garbage into Clinical Gold', C Thompson, Science, 12 May 1995).
There is also the issue of the emotive advertising used by commercial cord blood banks, which typically charge in the region of £1,500 for a 20-year storage term. Despite the rise of private 'for-profit' cord blood banks, there is little evidence to suggest that personally stored blood will ever be used. This has led bodies such as the Royal College of Midwives (see 'Commercial Cord Blood Collection: Guidance Paper 1a and Position Statement 1', Royal College of Midwives, 2002) and the Royal College of Obstetricians and Gynaecologists (see 'Opinion Paper 2: Umbilical Cord Blood Banking', Scientific Advisory Committee, Royal College of Obstetricians and Gynaecologists, June 2006) to declare that storage for autologous (personal) use is not to be recommended at this time.