Human Tissue Article Summaries Notes

HUMAN TISSUE

NOTES:

• So IMPT TO NOTE: no one here is really arguing about the outcome (its clear what the best outcome looks like)

  • They’re arguing over what’s the best legal mechanism to get us there

  • And if you think that the mechanism of property is wrong, you have to say, actually property would generate too many negative outcomes

    • And therefore we should have an alternative

• You CAN’T IGNORE THE LAW PART OF THIS DEBATE

  • HAVE to read Yearworth, if you want to do property approach

  • One way to think about it is: how can I get to this outcome? Is it through trusts? Etc

  • Don’t have your arguments descend into something that’s too wishy-washy about rights!

• So part of the motivation for Yearworth might be the restrictions around psychiatric injury from Alcock

  • The problem is that the floodgate arguments from Alcock just don’t apply here!

  • But unfortunately the Court can’t just carve a new exception to psychiatric injury, so they rely on property rights to circumvent those limitations

  • Remains unclear whether Yearworth was unique on its facts, or will signal the start of a new way of thinking about bodily tissue

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37

Held

• [29] “The law, as we will see, has to some extent begun to be refined in relation both to a human corpse and to parts of a human corpse ; but it has remained noticeably silent about parts or products of a living human body , probably because, until recently, medical science did not endow them with any value or other significance”

• [60] “These appeals will be allowed. We shall set aside the judge's determination of the third and fourth issues before him; substitute a determination that the sperm was the property of the men for the purposes of their claims in tort and, as amended, in bailment and that they are in law capable of recovering damages for psychiatric injury and/or mental distress in bailment; and remit the remaining issues in the actions for determination in the county court, indeed (so we provisionally consider) by the same judge

  • NOTE: BOTH their claims in negligence and in bailment were allowed!!

Skene – Yearworth Case Note

1. Introduction

• In JONATHAN YEARWORTH and others v North Bristol NHS Trust, the Court of Appeal for England and Wales held that six men who had deposited their semen for freezing before undertaking cancer treatment were entitled to be compensated when it was negligently destroyed.

  • The Court said that the men had deposited the semen solely for their benefit and that constituted a bailment. That was a significant decision because the law in England and Wales, as in other common law countries, had previously not recognised that people from whom bodily material had been removed (‘ originators ’ ) could have proprietary rights in their bodies or bodily material.

  • Those things were not capable of being ‘ property ’ (as stated in the Australian case Doodeward v Spence and many earlier cases in the UK).

  • No one could legally ‘ own ’ them, subject to the ‘Doodeward exception’, which enabled other people to obtain legal rights to possess, control, or even sell such material, by undertaking ‘work and skill’ or conferring ‘different attributes’ on it.

• The bailment analysis in Yearworth provided a right to the originators to be compensated for the negligent loss of their bodily material without consideration of other matters

2. Yearworth: The Facts

• The plaintiffs in Yearworth were six men who had been diagnosed with cancer. Before starting chemotherapy, they deposited their semen at the Southmead Hospital in Bristol.

  • The defendant, the North Bristol NHS Trust, was responsible for that hospital. As stated in the judgments, the men’s semen (which contained their sperm) was produced and stored ‘ for their possible later use ’ [3], with some men authorising later use of the semen for ‘ treating a named partner ’ [6](b). Each man signed a consent form for his semen to be stored and the consent form stated that he could withdraw his consent or vary the terms of the consent at any time before his sperm was used [6](b).

  • When the men sought to retrieve their stored semen after their chemotherapy, they found that it had been irretrievably damaged after ‘the amount of liquid nitrogen in the tanks in which it was stored fell below the requisite level’ [8].

  • Five of the men alleged they had suffered a psychiatric injury as well as mental distress [10], as they were ‘ already in a vulnerable condition ’ [9].

  • The defendants accepted that the semen had been destroyed as a result of their negligence

  • However, it was acknowledged by the Court in the judgment that their claims had ‘limitations or complications ’ and ‘ their worth in damages [would be] relatively small’ [12].

1. Claim for ‘Personal Injury’

• The 5 men who claimed to have suffered psychiatric injury argued that they had been caused ‘personal injury’ as well as ‘damage to their property’

  • The personal injury claim was quickly rejected

  • The Court held ‘it would be a fiction to hold that damage to a substance generated by a person ’s body, inflicted after its removal for storage purposes, constituted a bodily or “personal injury” to him ’ [23].

    • i.e. harm to bodily material removed from the body cannot be personal injury

2. Claim for ‘Damage to Property’

• The Court accepted that the deposit of the semen for later use constituted a bailment.

  • The unit in which it had been deposited was liable ‘ under the law of bailment, as well as that of tort ’ [50]; the arrangements were ‘ closely akin to contracts ’ [57]; and ‘ modest recovery ’ could be awarded for ‘ mental distress ’ against a gratuitous bailee in such circumstances [59].

• The references to the law of bailment as the basis of the men’s right to compensation have important legal implications.

  • In order to succeed in a claim arising from a bailment of their semen, the men had to establish first, that the stored semen was property; and secondly, that they had either ‘ legal...

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