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Cancer patients win lost sperm compensation claim

9 February 2009
Appeared in BioNews 494

The UK's Court of Appeal has found in favour of six patients in a group of legal claims made over sperm donations lost due to a freezer breakdown at Southmead Hospital in 2003. The ruling comes after the case was heard by the appeal courts in November. The five men and the widow of a sixth were seeking compensation over sperm samples, which were taken before infertility-inducing cancer treatments and were lost due to the negligent actions of North Bristol NHS Trust.

The claims were originally rejected at Exeter County Court in March of last year on the basis that sperm donations are no longer a part of a patient's body and can be likened to toenail clippings or cut hair. However, three of the country's most senior judges, including the Lord Chief Justice, Lord Judge, found that this was not the case as the sperm had been extracted from the body with the intention of it being retained and so reversed the decision of the lower court.

The legal implication of this ruling for the six claimants is that, in addition to receiving compensation for damage to their property, they are now free to claim further compensation for their consequential psychiatric harm.

More generally, the ruling means that those who give sperm samples before they become infertile can rely on the promise to maintain their sample. This ruling represents a significant enhancement of the legal status of patients with respect to their donated gametes. Donated gametes are now legally considered to remain the property of the donor so long as it is their intention to have the sample retained (allowing for statutory limits on storage). As the judgment states: 'the sperm retained a significant property, namely that, although... suspended by having been frozen, it remained in essence biologically active, a living nexus with the men whose bodies had generated it.'

In spite of viewing the samples in this light the Court still found itself unable to rule in favour of the appellants' second assertion, namely that the destruction of the sperm amounted to a personal injury against the donor.

However, this extra finding is relatively unimportant as the donors only needed for the samples to be ruled as a possession or as part of the body. In either case, the physical damage allows for the individual to claim damages for their psychiatric harm.

SOURCES & REFERENCES
Cancer patients can claim compensation for loss of sperm, court rules
The Daily Telegraph |  4 February 2009
Cancer patients win sperm appeal
The Press Association |  4 February 2009
Cancer sperm men win court battle
BBC News Online |  4 February 2009
What's the difference between sperm samples and discarded toenails?
The Independent |  5 February 2009
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