We acted for the mother in Canada’s first frozen embryo dispute and obtained an order restraining the embryos from being destroyed as they were found to be property as defined by our former Family Relations Act.
Our Assisted human reproduction litigation team headed by Lorne N. MacLean, QC, also watched the recent BC Court of Appeal decision with interest and are pleased it came to the conclusion that sperm is also property for purposes of lawsuits connected to potential negligence that caused its destruction. The damages that can be awarded if negligence is found to have caused the destruction of the sperm are expected to be substantial. The trial is expected to start at the end of April 2015. Our Vancouver Assisted Human Reproduction Dispute Lawyers are ready to assist you in any dispute concerning the ownership or use of human tissue.
In short the BC Court of Appeal determined frozen human sperm is “property” for the purposes of the Warehouse Receipt Act.
As summarized in the official summary from the BC Court of Appeal
[This is a]… class action brought by men who deposited their sperm with the appellant. The respondent is the representative of the class. The sperm was kept in a freezer that malfunctioned, damaging or destroying the sperm.
The appellant [UBC] raised an exculpatory clause in the contract of storage against the respondent. He contends it offends the Warehouse Receipt Act [WRA]. The parties agreed to have a sub-issue tried to determine whether the appellant could rely on the WRA. The issue at trial and on appeal was whether frozen human sperm is “property” for the purposes of the WRA. The trial judge held that it was and that the appellant was precluded from relying on the exclusion clause.
Held: Appeal dismissed, majority reasons of Bennett J.A. agreed to by Frankel J.A concurring in the result. Per Chiasson J.A.: For the purposes of the WRA, human sperm is “property”. The task is to determine the meaning of “goods” in the WRA. As of the date the class members deposited their sperm, medical science had advanced to the point where sperm could be considered to be property. The judge concluded correctly that the plain meaning of goods in the WRA includes human sperm. He also undertook a purposive or contextual analysis and correctly reached the same conclusion. The decision of the Supreme Court of Canada in Harvard College does not support reading into the definition of goods in the WRA a limitation that goods are only property that can be traded in the market place. Majority (per Bennett J.A. and Frankel J.A.): The definition of sperm as “property” is limited to the WRA in this case. After applying a framework weighing the rights of the donors and the legislative restraints imposed on the donors, each of the donors had ample rights in relation to his own sperm specimen that invested him with ownership of the specimen sufficient to be defined as “property” and meet the definition of “goods” under the WRA.
Call our Vancouver Assisted Human Reproduction Dispute Lawyers now at 604-602-9000.
