Like so many issues that come before our courts, moral and philosophical considerations must be tackled. Unfortunately, the court, ensnared with procedures, legislation and rules, is often ill-equipped to handle the existential questions that come before it.
A recent example of our courts tackling moral conundrums is found in the decision of JCM v. ANA, 2012 BCSC 584. This case involved the purchase of 13 sperm straws by a female same-sex couple from an anonymous donor in the U.S. After purchasing the sperm, both women used therapeutic insemination to become pregnant and give birth to a child.
The women subsequently separated in 2006 and divided the spoils of their marriage, except for the remaining sperm straws. A few years later JCM met a new partner, TL, and wanted to use the remaining sperm to create a new family. ANA wanted the sperm destroyed. They could not agree and as a result turned to the courts for a solution.
Unlike typical property, like a home or car, sperm carries the potential for human life. This added complexity engaged the court in a debate over whether the sperm should even be considered property that could be divided between the women.
Ultimately, the court decided that while ANA may be morally opposed to the “commercialization of reproduction or the commoditization of the body” she purchased the sperm at $250 a vial. The commoditization had already occurred. The court reasoned that ANA and JCM purchased the sperm and by concluding this transaction, the sperm was treated as property and should retain this quality.
As an aside– you are prohibited from purchasing sperm in Canada pursuant to the section 7 of the Assisted Human Reproduction Act. Couples are, however, able to purchase sperm in the U.S.
In determining that the sperm was property, the court ordered the 13 sperm straws be divided equally between the women. On its face, this solution appears to be the most practical; however, in coming to this solution, the Court has also decided that sperm can be considered and divided as property.
There have been cases, like this one, in the U.S. with differing results. For example, in the case of Davis v. Davis in Tennessee, the Court created an interim category of property for frozen embryos, where the embryos were not characterized as either “persons” or “property”. Instead, the court gave each person an ownership interest and decision-making authority over disposition of the frozen embryos. This approach, in my view, is an attempt by the Tennessee Court to recognize that frozen embryos cannot be lumped into the same category as the house and the car.
Our court did not adopt the reasoning of the Tennessee Court. Our Court, instead, reasoned that without characterizing the sperm as “property”, the court was unable to decide what should be done with the sperm.
If our court would have adopted the reasoning of the Tennessee Court, the sperm would have created a new category of property for which there is no governing legislation. As a result, there would have been no discernable mechanism for people to dispose of leftover sperm upon separation. By categorizing the sperm as property, the sperm falls under the same property provisions as a house and, according to our law, should be divided equally between the parties.
Unfortunately, there are no grey areas in court decisions, even when the grey areas clearly exist outside of the court system.