People draft wills to set out their wishes for how their
property is to be distributed after they die. Certain items
– such as money, real estate, or jewellery –
are easily identifiable as "property", and are
specifically thought of and addressed when wills are drafted.
However, other items are less clearly "property". Take,
for example, genetic material stored for assisted human
reproduction, such as frozen sperm samples. Is this
"property" that would form part of one's estate and
be affected by the terms of the will? Recent case law indicates
that the answer to this question is "yes".
In a recent decision of the Supreme Court of British Columbia,
J.C.M. v. A.N.A., 2012 BCSC 584, it was held that, on the
facts of the case, sperm straws (vials of donated sperm) were to be
treated as "property" for the purpose of dividing them
between two separating spouses upon the dissolution of their
J.C.M. and A.N.A. commenced a spousal relationship in 1998, and
had two children using sperm provided by a single sperm donor.
A.N.A. gave birth to their first child, and J.C.M. gave birth to
their second. The couple separated in 2006, and entered into a
separation agreement in 2007. The agreement divided the property
between them, but the sperm straws inadvertently were not addressed
in the agreement.
J.C.M. wanted to have a child with her new spouse, and contacted
A.N.A. to offer to purchase what she determined to be A.N.A.'s
half-interest in the remaining sperm straws. A.N.A., however,
expressed her preference that the sperm straws be destroyed, and
refused to consent to the release of the sperm straws from the bank
in which they were being stored. J.C.M. commenced an application
for an order declaring the sperm straws to be her sole property,
while A.N.A. opposed and requested that the sperm straws be
A.N.A. raised various moral arguments as to why sperm should not
be treated as property. The common law had historically taken the
view that human beings, or their body parts or products, could not
be considered property. However, the application judge reviewed
recent case law, and expressed agreement with the theme in those
cases that medical science has advanced to a point where this
common law view requires rethinking.
One of the recent cases reviewed by the court was the U.K. case
of Jonathan Yearworth & Ors v. North Bristol NHS
Trust,  EWCA Civ 37. In this case, six men who had
stored sperm samples sued when the liquid nitrogen in the tanks
used to store the samples fell below the amount required to keep
the samples frozen and they thawed. The court held the sperm
samples were property for the purpose of the claim in negligence of
the six men.
The Yearworth decision was also cited by Supreme Court
of Queensland in its decision in Bazley v. Wesley Monash IVF
Pty Ltd.,  QSC 118. There, Warren Bazley stored sperm
samples prior to undergoing treatment for cancer, and subsequently
died of the disease. Though he had prepared a detailed will, Mr.
Bazley failed to make any written direction about the use of his
sperm post-mortem. Following his death, the storage facility took
the position that, in accordance with their written contract and
national guidelines, they could not facilitate the use of the
gametes and were required to dispose of them. The court held the
straws of semen "are property, the ownership of which vested
in the deceased while alive and in his personal representatives
after his death." It held that the storage facility stood in
the position of a bailee for reward to the deceased, as it agreed
to store the straws so long as the fee was paid and the contract
with the deceased was maintained.
The recent treatment of genetic material as "property"
is important to bear in mind during estate planning for anyone who
has acquired or stored such material. If you do not specify in your
will what you wish to happen to genetic material in which you have
an "ownership interest", it could be found to form part
of the residue of your general estate, and one or more of your
beneficiaries may quarrel over its possession –
particularly in families where there are ex- and current spouses,
and children from past marriages.Special consideration should be
given to the disposition of this special kind of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Amato v. Welsh, 2013 ONCA 258 marks an interesting development in the law – it suggests the previously inviolable doctrine of absolute privilege which protects lawyers from suit may admit an exception.
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