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How do we resolve reproductive material disputes?

Separated bodily material is difficult to categorize. Take gametes for example. Once extracted, sperm and ova fall somewhere between the category of objects and things, and the category of subjects, persons, and their bodies. For this reason, it is also difficult to legally categorize gametes. Property law takes care of our rights over things, and our right to bodily integrity protects our rights over our body, and it is unclear as to which of these legal categories the right to use and control gametes ought to fall into. As you may expect, it will depend on the gametes in question. Or, more precisely, it will depend on the functional relationship between the progenitor and their bodily material.

Two cases can help explain how our relationship with our bodily material can vary. In the first case (AW v CC [2005] ABQB 290), AW ‘extended a courtesy to a friend’ by gifting CC sperm to assist her in conceiving through in vitro fertilisation. CC did conceive and gave birth to twins. Four embryos remained. Although AW refused to consent to the use of the remaining embryos, the Queen’s Bench of Alberta held that the remaining embryos were CC’s property, as ‘they are chattels that can be used as she sees fit’, and ‘AW is not in a position to control or direct their use in any fashion’.

“The physical separation of bodily material did not sever the functional relationship between the progenitor and his bodily material.”

In a similar case (Evans v Amicus Healthcare [2004] EWCA 727), Evans and her partner (Johnson) created six embryos from their extracted gametes. Before an embryo could be implanted (but subsequent to Evans’ loss of natural fertility due to surgery on her ovaries), the relationship between Evans and Johnson ended. Johnson then sought to have the embryos destroyed. The Court of Appeal of England and Wales held that since the Human Fertilisation and Embryology Act 1990 required the continuing consent of both parties from the commencement of treatment to the point of implant, Johnson was ‘entitled to withdraw his consent’ and ‘prevent both the use and continued storage of the embryo fertilised by the sperm.’

There are two important differences between these cases: one factual, one legal. The factual difference concerns the relationship between the progenitor and the bodily material. In AW v CC, the progenitor ‘gifted’ or relinquished his sperm. The sperm became a ‘mere object’ since the bodily material retained no connection with the progenitor and his intentions, tasks and projects. The physical separation of the bodily material from the body coincided with the functional separation between the body and the intentional use of the body. In Evans v Amicus Healthcare, the bodily material remained functionally equivalent to the body. The bodily material, like the body, remained the way in which the progenitor engages in tasks and projects. In this case, it was the way in which the progenitor engaged in the project of biological parenthood. The physical separation of bodily material did not sever the functional relationship between the progenitor and his bodily material. What these two cases illustrate is that bodily material is ambiguous; an item of bodily material can be a ‘mere object’ or it can remain functionally equivalent to the body.

“When we apply property law to ‘bodily auxiliaries,’ we risk denigrating the value of the bodily material by reducing something that may have value in its own right into something that has substitutional value.”

Consider how walking sticks are the same. For a blind person ‘finding ‘one’s way among things,’ his or her walking stick may initially be one object among many other objects. Yet ‘once the stick has become a familiar instrument,’ Merleau-Ponty (1945/2003, at 176) explains, ‘the world of feelable things recedes and now begins, not at the outer skin of the hand, but at the end of the stick.’ At which point, the walking stick becomes a ‘bodily auxiliary’ since ‘the stick is no longer an object perceived by the blind man, but an instrument with which he perceives.’ The walking stick no longer has a detached, mechanical relationship with its owner. Rather, like the body, the walking stick becomes the way in which the person experiences the world and engages in tasks and projects. It represents a point of view of the world (that the blind person can have no point of view of). Bodily material may also become a ‘bodily auxiliary’; it may continue to be engaged in tasks that are functionally equivalent to the tasks of the body.

The second difference between the two cases concerns the application of different branches of law to address the disputes. Property law governed the use of the embryo in AW v CC, whereas statutory provisions governed the use of the embryo in Evans v Amicus Healthcare. This is convenient. It is convenient because the legal distinction maps onto the functional distinction (in these two cases). The sperm in AW v CC was a mere object and the sperm in Evans v Amicus Healthcare was a bodily auxiliary. To the extent that property rights protect preferences and choices that exist independently of the rights-holder, it is appropriate for property law to govern the use of mere objects. Yet, when it comes to ‘bodily auxiliaries’—which, like the body, enable preferences and choices that are necessarily associated with a particular person—the application of property law is conceptually and doctrinally problematic.

The problem is that property law provides a particular way of governing the transfer of things, the sale of things, and the remedial consequences of unlawfully interfering with things. The structure of property law is premised upon the contingent relationship between the owner and owned thing and the substitutional value of the item of property. However, the use and control of bodily material may be premised on a particular relationship between the progenitor and the bodily material and may have value in its own right. When we apply property law to ‘bodily auxiliaries,’ we risk denigrating the value of the bodily material by reducing something that may have value in its own right into something that has substitutional value.

Image Credit: ’16-cell stage of a sea biscuit’ by Bruno Vellutini. CC BY SA 2.0 via Flickr.

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