From a purely legal standpoint, I completely agree with this decision as it provides the most equitable result:
A lesbian couple from British Columbia divided all their assets when they broke up in 2006 but forgot about 13 tubes of sperm that were being stored in a sperm bank. The sperm came from the same male donor, and was used for each of the women to have a baby — the first in 2000, and the second in 2002. The remainder of the donation was forgotten, left in sperm straws in the Genesis Fertility Clinic.
But trouble emerged in 2009, when one of the women, known as J.C.M., met a new partner and wanted to have another baby. J.C.M. asked her former spouse, known as A.N.A., for permission to use the left-over sperm so she and her new spouse could have a baby biologically related to her first child. A.N.A. considered the request carefully, but replied that she would rather the sperm be destroyed. That prompted J.C.M. to go to court to fight for ownership of the sperm, leading to a judgment released today by B.C. Supreme Court Justice Loryl Russell.
In a decision that is sure to prompt much discussion, Russell ruled that the two women divided their furniture, money and child-rearing duties evenly, and so too should they share the left-over sperm. “I find that the remaining 13 gametes should be divided between the parties. Assuming it is not possible, or that it is impractical, to divide one sperm straw in half, I award seven sperm straws to the claimant, J.C.M., and six sperm straws to the respondent, A.N.A.,” Russell wrote. She said J.C.M. should pay A.N.A. $125 for the extra half sperm straw. When the former couple originally purchased the sperm from a U.S. clinic in 1999, they paid about $250 per straw.
The sperm donor had “retired” from making donations after the estranged couple had bought their sperm in 1999, so there was no other way to get more of this same sample, Russell’s ruling said. J.C.M. conducted research on a sperm donor database and tracked down another women who had given birth to children using sperm from the same donor. But that women told J.C.M. that she had no spare sperm. The U.S. sperm bank, Xytex, told J.C.M. it had no contact information for the donor and that it would be expensive to try to find him.
Russell wrote in her decision that she had to first determine whether sperm straws are property. J.C.M.’s lawyer Lawrence Kahn argued that they are based on case law from the United States and the United Kingdom, and one case out of Canada. There is “no logical reason to treat the gametes as other than property,” Russell quoted J.C.M.’s lawyer as saying, since awarding the sperm to one party does not create a parental obligation to the other party who does not wish to procreate.
A.N.A’s lawyer, Georgialee Lang, argued there is no federal or provincial legislation, or any Canadian case law, that treats sperm as property. “She argues the issue of treating sperm as property is a moral one,” Russell wrote.
Lang cited an academic expert, Dr. Bonnie Steinbock, who says there are three moral issues with treating sperm as property: posthumous reproduction, commercialization of reproduction, and treating the body as a commodity. Russell noted this was an emotional quandary, but that she decided the sperm donation should be considered property for several reasons, one of them that the donated sperm had always been treated as property: by the donor, by the U.S. clinic, by the Vancouver sperm bank, and by the former couple. “They have made use of it to their benefit,” Russell wrote, adding she rejected A.N.A.’s moral objections to the commercialization of reproduction since the woman purchased the sperm in the first place. “I do recognize that sperm used to conceive two children for two loving parents does not have the same emotional status as a vehicle or a home,” she wrote. “There is no intent on my part to trivialize this matter.”
This case serves as an important reminder as to why everyone proceeding with assisted reproduction needs to have a Reproductive Estate Plan in place. Had these parties executed such a contract, it would have saved years of heartache, litigation and legal fees.
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