Split spare sperm samples, court tells separated lesbian couple

Thirteen vials of sperm are to be divided between two women after their relationship ended, a Canadian court has ruled. It ruled the sperm should be treated as property and divided between the former couple as other joint assets were upon separation.

The dispute arose following the request by one of the women - known as JCM - to use the sperm to conceive with her new partner, which was refused by the other woman, known as ANA. The couple, who separated in 2006, purchased the sperm, obtained from the same donor, from a sperm bank in the USA in 1999.

Each woman used the sperm to conceive. The two resulting children now live with their respective biological mothers with each parent being allowed visiting rights to the other child. Upon separation the couple agreed to divide equally all the property in the relationship but inadvertently missed out the vials of sperm.

In 2009, JCM met a new partner and emailed ANA offering to purchase half the sperm vials, stored at the Genesis Fertility Clinic in Vancouver, to enable her to have another child who was genetically related to her existing child. JCM reportedly refused, stating her wish for the sperm to be destroyed.

Attempts to obtain further sperm samples from the donor failed. JCM had been able to contact another family who had given birth to children using sperm from that donor but was told no extra sperm vials were available. The clinic also informed JCM in 2011 the donor had 'retired' and they had no contact details.

In ordering the sperm to be divided equally, Justice Loryl Russell in the Supreme Court of British Columbia said although sperm had a different 'emotional status' to other property in divorce proceedings it should be treated as property.

'The sperm has been treated as property by everyone involved in the transaction... It has been purchased; the parties have a right to deal with it. They have made use of it to their benefit. The respondent's moral objections to the commercialisation of reproduction or the commoditisation of the body seem to me to be too late', she wrote.

The court referred to a UK Court of Appeal decision in 2009 which treated sperm as property for the purpose of claims for compensation after sperm was negligently destroyed at the storage facility, reported in BioNews 494.

'As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property... However, I agree with the [UK] Court of Appeal's finding that medical science has advanced to a point where the common law requires rethinking of this point', Justice Russell wrote.

The judge also rejected the argument that granting use of the sperm to JCM was not in the best interests of the two existing children. She concluded that such an analysis was ' not appropriate on the circumstances of the case'.

'In regard to a child who may possibly be conceived using the sperm donation jointly purchased by the parties, an analysis of the best interests of that child is, at best, speculative', said Justice Russell.

Furthermore, the judge said a recent decision in the as yet unresolved litigation brought by Olivia Pratten (reported in BioNews 645) with respect to children born of anonymous sperm donation had 'no role to play' in a dispute over gametes jointly purchased. Justice Russell also rejected the argument that the order should be determined on the basis that anonymous sperm donation is proscribed in British Columbia, refusing to rule on the legality of anonymous sperm donation, making the point that in any event the sperm had already been donated.

On how the vials should be divided, the judge said if the thirteenth vial could not be divided, seven vials would go to JCM and six to ANA. In this event, JCM is ordered to pay $125 (half of the $250 originally paid for each vial) for the extra half-vial she will receive.