Florence Bellivier

Lost property? Legal compensation for destroyed sperm: a reflection and comparison drawing on UK and French perspectives

In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful. This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the sperm, and that compensation was thus due on the grounds that the mens property had been destroyed. We first argue that the claim is erroneous and enhances the tendency towards the commodification of body parts. We then suggest that the men could have been compensated for the harm done to them without granting property rights, and that this would, at least in philosophical and ethical terms, have been more appropriate. To help illustrate this, we draw on a parallel case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. Finally, we suggest some possible ethical and practical problems if the proprietary view expressed in the UK ruling were to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, a ‘no property in the body’ approach should be the default position in cases of detached bodily materials, the alternative being significantly ethically problematic.

The Circulation of Human Body Parts and Products: When Exclusive Property Rights Mask the Issue of Access

The only framework of rules applicable to the human body is that of objects or things, even though this unique and original thing must be considered specifically. Recognizing the existence of practices that it sought to authorize under strict regulations (donations of human body parts and products, assisted reproductive technology, etc.), the French legislature set up a system of limited commodification. That is the reason why the concept of ownership to describe the relationship between the individual and its body may be appealing. Nevertheless today it appears incomplete in regard to what probably constitutes the major issue in the analysis of the human body: conceptualizing what happens, not at the beginning of the chain of the use of the parts and products of the human body, but following the changes and exchanges to which these human body parts and products give rise. In one word: how to define and regulate access to the biological resources?

Biological Sample Collection in the Era of Genomic Medicine: A New Example of a Public Commons?

The model of the commons appears theoretically relevant for thinking, not so much about health in general—health as an international public good has been the subject of numerous studies—but about the governance of the health tool that biobanks constitute, especially as we enter the era of genomic medicine. Nonetheless, the governance of biobanks, as transformed by genomic medicine, will have to meet some conditions in actual practice to constitute a true commons.