Towards commodification? A response to the Court of Appeal judgment on compensation for lost sperm

In this case six men stored their sperm prior to undergoing treatment for cancer in case they proved to be infertile after the treatment. However, the sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust where their sperm was stored, losing in the first instance, but subsequently having their claim upheld by the Court of Appeal (1)The claim the men make is that they have suffered psychiatric injury and/or mental distress and should be compensated. That the men suffered I have no doubt, the loss of the sperm and the possibilities it represented, not just of having children but of the reality of a future life beyond treatment, is clearly distressing and even debilitating, and something regrettable. Moreover, given this distress, compensation is not necessarily inappropriate: it would at least recognise that injustice had occurred. However, I have concerns about the appropriateness of financial compensation and putting a price on such losses, though as the only form of recognition this is better than none. My primary concern then is not about the outcome as much as it is about the rationale for the ruling; namely that the men 'had ownership of the sperm which they ejaculated'. Thus compensation is on the grounds that their 'property' has been damaged. In this ruling a body part - sperm - has been deemed property.

Whether or not the body and body parts can be property is a hot topic in the genetic era when emotive issues such as the ownership of gametes are at stake and when huge profits can be made from selling body parts and owning biological material (2). Traditionally and relatively uncontroversially there has been no property in the body, it has been deemed to be res nullius - no one's thing - however, in light of developments particularly in genetic and reproductive technologies this is now not the case. But there is no consensus on who should own and have rights in and to what. For example, in this case, the appeal judges disagreed with the first ruling. This is no surprise. The most famous case of this kind, the 'Moore Case' was heard three times, ultimately at the Supreme Court of California (3). In this case a very lucrative cell line was derived from cells taken from John Moore's spleen, without his knowledge or consent. Moore claimed, like the six men in the present case, that he had property in the cells as they were part of his body and that therefore he should share the profits. The Supreme Court ruled that although he had grounds for complaint as he had not been fully informed he had no property in the body.

To hold property in one's own body is a strange philosophical conundrum as 'who' is doing the 'owning' of 'oneself'? Ethically it is also problematic, as does the 'ownership' of parts of bodies suggest that whole bodies and so persons can be owned? This was the worry of the judges who rejected Moore's claim to have property rights in his body, and Justice Arabian argued that what Moore asked was that we 'regard the human vessel - the single most venerated and protected subject in any civilised society - as equal with the basest commercial commodity'. My concern is similar to this: that the suffering of these men should be recognised but not in a way which encourages us to consider parts of persons as commodities. Not that this case alone does this but that by increasingly thinking of body parts as property we may increasingly think of their source, the person, as property.

This debate will run and I have much sympathy with the dissenting judgment in the Moore case that not to grant property was to grant rights to everyone else. Also with the concept raised both in the Moore dissenting judgment and in the judgment of this case that property is a 'bundle of rights'. Legally, and even philosophically, I think this makes sense, and property conceived of in this way reduces the tendency to commodification because it separates out different types of rights within this concept. But most of time (perhaps sadly) we do not live in law courts or philosophy seminars and talk of ownership and property rights in the body serves to increase commodificatory attitudes and approaches (4). Thus talk of ownership - even for good intentions and to bring justice - encourages us to think of people as things and use market rhetoric. And it is this I wish to avoid. In this case the judge stated clearly that there were other possible legal avenues for redress, but that it was 'the easiest course' to 'uphold the claims of the men to have had ownership'. I suggest that though it might have appeared 'easy' the dangers of increasing commodification and of commodificatory attitudes are such that we should beware of situating property in the body and in this case the judges should not have taken the 'easy' route (5).