Clinical Mishaps and Novel Injuries in Family Planning

Yearworth & Ors v Bristol NHS Trust

What counts as a “personal injury”? Such a question looms large following the decision in Yearworth & Ors v Bristol NHS Trust ¹ in which the Court of Appeal determined that the destruction of stored cryopreserved sperm samples did not constitute a personal injury to male cancer survivors. Rather, the loss in the circumstances of the case was framed as one under which the men could be seen as having “owned” their sperm. While media attention has focused on this latter aspect of the case, this note considers the questions Yearworth raises as to the meaning of “personal injury” and argues that the courts need to radically rethink their approach to reproductive harms arising out of mishaps in family planning.

The case

The claimants were all cancer patients receiving treatment and advice at the defendant's hospital, Southmead Hospital, Bristol. Having been advised that the treatment they would undergo for cancer placed their fertility at risk, they banked semen samples on the basis that the defendant hospital's licensed fertility unit would freeze and store the samples for possible future use of the sperm to the extent permissible under the Human Fertilisation and Embryology Act 1990 (hereafter, “the [1990] Act”). No charge for freezing and storage was sought.

Prior to any attempt to use the sperm, in June 2003, as a result of equipment failure, the samples thawed and for the purposes of the actions brought, were treated as having perished irretrievably. The men claimed that they had suffered mental distress and/or psychiatric injury upon learning of the loss of the samples, and in some cases, that they had lost the opportunity to father children having failed to regain fertility following treatment. The Trust admitted being in breach of its duty but denied liability, arguing that the men were not entitled to claim damages because loss of sperm did not amount to a “personal injury” or damage to their “property”. The trial judge agreed, and the men appealed.

The Court of Appeal also rejected that the damage to and loss of the sperm samples constituted “personal injury”. However, departing from first instance analysis, on the issue of property, the court found that for the purposes of their claims in tort, the men had ownership of the sperm. Furthermore, having asked the parties to make fresh submissions on whether the appellants might have a distinct cause of action under the (somewhat archaic) law of bailment, the court also held that there was a bailment of the sperm by the men to the Trust. Subject to the factual issues being resolved before the County Court, the Trust was liable to them under bailment as well as tort, and the appellants were in law deemed capable of recovering damages for psychiatric injury and/or mental distress in bailment.

The physical boundaries of personal injury

Yearworth exemplifies the limited application of the personal injury concept to novel harms. Section 38(1) of the Limitation Act 1980 stipulates that “personal injuries” “includes any disease and any impairment of a person's physical or mental condition”. Despite the seemingly non-exhaustive scope of this provision, in line with conventional understandings of personal injury which typically refer to the presence of deleterious physical state, the courts look for a physical injury “hook”.

In Yearworth, this obvious “physical” dimension was missing. Ultimately, Appellants’ Counsel failed to convince the court that the relevant loss, narrowly advanced as the destroyed sperm itself, constituted a “personal injury”. Unable to cite direct authority, Counsel's argument that the judiciary embrace a more elastic definition of “injury” was derived from Walkin v South Manchester Health Authority. ² There, the Court of Appeal had accepted that an unwanted pregnancy resulting from clinical negligence in family planning fell within the definition of s 38(1) of the 1980 Act. More germane to the instant case, Counsel also cited German authority, ³ decided on similar facts to Yearworth, in which the Bundesgerichtshof treated negligently destroyed sperm as if it were a personal injury.

These arguments were given short shrift. Noting that while a broader approach to personal injury had been adopted in Walkin, pregnancy was nevertheless a physical event within the woman's body; and in relation to the specific legal context under which the German Court laboured at the time of giving judgment, their options for permitting recovery, by contrast with English law, were limited. The only means by which the man could have recovered for the damage he had sustained was by classifying the injury as personal.

Disposing of the personal injury element, Lord Judge CJ commented that “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” (at paragraph 23). A contrary conclusion, he considered, could be productive of counter-intuitive results, for example, in cases where the sperm was negligently destroyed after the men regained their fertility, or where the time-limit for sperm preservation had been met resulting in the intentional destruction of the samples as demanded by statute.

(Sperm) ownership

By contrast with the personal injury tenet, the recognition of qualified ownership in sperm has been regarded as the most sensational aspect of this ruling. Yearworth constitutes, to the author's knowledge, the first time that the English courts have determined that gametes can amount to property. In terms of the rights and scope of control afforded to individuals in relation to their reproductive materials, the 1990 Act proceeds on the basis of consent, not property.

As the court noted, the general rule in English law is that there is no property right or ownership over human bodies or body parts. Notable exceptions include instances of “theft” of body parts where property interests have been identified. ⁴ Arguably, such approaches may relate to situations where there is an absence of legal avenues but strong policy considerations nevertheless exist for identifying relevant interests. Given the court's rejection of a personal injury framework, but keenness to recognise these men's claims, Yearworth could be analysed in the same light.

Reviewing the position in English law, the court also alluded to US authorities of Moore v Regents of the University of California ⁵ and Hecht v Superior Court of Los Angeles County. ⁶ In Moore, the Supreme Court had declined to find that the claimant had relevant property rights in his removed spleen (a diseased spleen which had been operatively removed, and from which medical researchers subsequently developed a valuable stem cell line). The thrust of the decision rested on the idea of abandonment/waiver, notably that an individual retains no ownership interest in a body part once it has been removed. By contrast, in Hecht, the abandonment thesis failed to apply where the testator expressly sought to bequeath his sperm samples to his cohabitant so that she could conceive his child. Determining that sperm samples were capable of constituting property for the purpose of the State's Probate Code, and thereby being bequeathed, the court distinguished Moore on the basis that there Moore had had no expectation of continuing to exercise dispositional control over his body parts following removal.

In Yearworth, the court found Hecht highly persuasive noting that, “it is hard to regard ownership of stored sperm for the purpose of directing its use following death as other than a step further than that which the men invite us to take in the present case” (at paragraph 40).

The second key point was whether the provisions of the 1990 Act had the effect of eliminating any rights of ownership of sperm as the District Judge had ruled. Embracing a more liberal reading of the 1990 Act, the court considered that it would be a curious result if an Act “designed to give legal effect to the principles of good practice in modern reproductive medicine” served to deprive the men of the opportunity to recover damages for an admitted breach of duty of care in respect of their sperm (at paragraph 41).

As the court noted, it was by their bodies alone that the men had generated and ejaculated the sperm. The sole object of their ejaculation of the sperm was that in specific circumstances it might later be used for their benefit. While the men's rights, control and dispositional wishes regarding the sperm were limited by virtue of provisions governing fertility clinics and the storage of samples, alongside the “child welfare” provision of the 1990 Act, the court nevertheless found that the men's inability to “direct” the use of the sperm did not derogate from ownership. Moreover, the court found that the “consent” provisions under the Act conferred significant negative control over the sperm in investing the men with absolute authority to direct that the sperm not be used in a certain way (at paragraph 45(f)(ii)). In this respect, the court rationalised that the Act invested in the men a fundamental feature of ownership: namely, that at any time they could require the destruction of sperm (at paragraph 45(f)(v)).

The court's judgment constitutes a bold step. Though appealing for a review of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, as well as emphasising the narrow remit of its decision as pertaining to “the products of a living human body intended for use by the persons whose bodies have generated them” (at paragraph 45(a)), this should be read with caution. The future remit the court has afforded itself looks far from limited. Though the case concerns sperm, and the status of other materials will be determined on a case-by-case basis, little imagination is needed to anticipate the cases this ruling invites. Given the serious ethical, social and legal implications arising, Yearworth raises the question as to whether any of these can, or should, be tackled by adjudication.

Analysis

As a voluminous body of scholarship shows, the question as to whether English law should recognise property in the body is hotly debated. In some quarters property is championed as a critical means of protecting bodily integrity; ⁷ for others it indicates a slide towards a dystopian regime which commodifies the human body and devalues persons. ⁸ By contrast, for the present author, the fact that debates around property in the body can be so causative of emotive contestation, with property being typified as either good or evil in this context, is the chief problem; the concept as applied to the body carries so much emotional (and jurisprudential) baggage as to seriously impede any sensible discussion about what rights, uses and interests individuals possess in their corporeal selves. Indeed, a pragmatist might form the view that eschewing all talk of property could be a worthwhile cause in favour of addressing head-on these latter issues – for they are, after all, the central issues. However, given that the Court of Appeal has already trodden down this particular path, perhaps our most immediate concern is whether the courts are well-equipped to deal with the repercussions of its analysis. At a time when system failings in the practices of fertility clinics are starting to come to light, ⁹ future problems can be discerned in the reproductive realm alone.

While tenets of this judgment could be generalised to gametes, what of other reproductive materials, for example, embryos that have been negligently destroyed or negligently created with the wrong gametes? Not only do weighty ethical arguments seem to point against a property resolution, ¹⁰ but one should note the potential for other complicating factors, for example, that multiple actors could potentially seek to institute claims. ¹¹ In these respects, Yearworth looks less than straightforward, and the absence of discussion as to how the analysis applies beyond the immediate facts is lamentable. Instead, we are presented with a judgment overwhelmed by theoretical questions around the narrow issue of the susceptibility of sperm to ownership. Yet in a case which extends the boundaries of civil law in important ways, some engagement with broader policy questions as to whether sperm, as a class of reproductive (and other) materials, should constitute property was demanded. Moreover, to avoid the perils of stumbling from case to case in a controversial area, some forward-thinking of likely future scenarios was also begged.

However, the judicial approach to clinical negligence suits arising out of family planning as a whole indicates the need for a rethink. Though such mishaps typically involve the frustration of qualitatively different reproductive wishes (e.g. to beget a child or to avoid parenthood), strikingly similar interests arise. Despite this, we are witnessing the judicial deployment of quite divergent legal techniques in typifying actionable loss: “property” in Yearworth, “personal injury” in Walkin and more recently, as I explore below, “reproductive autonomy” as a compensable interest vindicated in its own right in Rees v Darlington Memorial Hospital. ¹² Arguably, it is time to review the terrain in favour of working towards a coherent position.

Reproductive injury

Counsel's argument that the court should adopt a broader notion of personal injury to cover ejaculated sperm never looked promising. The sperm were no longer part of the body. Unsurprisingly then, reliance upon Walkin backfired; wrongful pregnancy surely lies at the penumbral fringes of what could be deemed a personal injury, but still demonstrates the critical factor lacking in Yearworth: a deleterious bodily interference. Yet, given the reliance upon Walkin, a wrongful conception case, what is surprising is the absence of argument based on quite promising developments flowing from other cases falling within this category, in particular the House of Lords’ ruling in Rees.

In Rees, which concerned the wrongful conception of a healthy child to a disabled mother, their Lordships maintained that their earlier ruling in McFarlane v Tayside HB applied. ¹³ McFarlane determined that the births of unwanted but healthy children, though born as a result of clinical negligence in family planning, were occasions for joy, and could not form the subject-matter of damages. In the House of Lords’ view (by contrast with the Court of Appeal's thoughts on the matter), though by no means a unanimous one, the claimant's disability in Rees did not disrupt this conclusion. Though denying the claimant child maintenance damages, by a majority their Lordships allowed recovery under a different head, the so-called “Conventional Award”. This judicially created award of £15,000 is intended to acknowledge the denial of the parents’ autonomy and lost opportunity to limit their family size; an award that now applies to all wrongful conception cases involving negligently born healthy children. ¹⁴

What is interesting about this development is that the Conventional award would seem to “amount to an actionable injury in its own right”. ¹⁵ That the award is directed to the parents and not just the mother (who is separately compensated for the physical injury of pregnancy) suggests that rather than being premised upon some deleterious physical injury, the “gist” of the injury is the parents’ loss of autonomy. This is, as some have noted, a most significant development in negligence. ¹⁶ Insofar as the award arose out of circumstances where individuals sought to avoid parenthood, it nevertheless holds potential for application to cases like Yearworth, and, importantly, to a far wider range of cases involving negligently frustrated reproductive plans.

Noting that the award was directed to the denial of an important aspect of the claimants’ personal autonomy, Lord Millett in Rees commented:

“This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law … the parents have lost the opportunity to live their lives in the way that they wished and planned to do. The loss of this opportunity, whether characterised as a right or freedom, is a proper subject for compensation by way of damages.” (at paragraph 123)

The purchase of this approach may be apparent; in many respects, the pitfalls inherent in the argument concerning personal injury (and indeed the court's conceptualisation of sperm as capable of ownership) are squarely addressed. As Lord Judge CJ had noted, treating the destroyed sperm as the “personal injury” could give rise to all sorts of legal anomalies, where even claimants regaining fertility and having no further use for sperm samples might seek reparation where these perish owing to negligence. Instead, the “injury” the Conventional Award speaks to are the interests interfered with as a result of the destroyed sperm. Subject to satisfying the other elements of negligence, those not regaining fertility have clearly lost any hope of genetic fatherhood through no longer being able to participate in assisted conception. If the courts are inclined to expand liability in the civil law in relation to novel reproductive injuries, then this approach offers a far more promising line of analysis. While the courts will have to assess what limits, if any, should apply to prospective claimants alleging reproductive harm, the approach offers ease of application not only to Yearworth but also to the fuller spectrum of clinical mishaps arising in procreative matters.

Conclusion

Given the problems surrounding conventional understandings of “personal injury”, the deployment of a property rationale to claimants physically unharmed as a result of negligence is understandable. The court was keen to afford some recognition of the wrong done and the resulting harm. But such cases should not be adjudicated in isolation; Yearworth will not be a one-off, and the idea of “owning” one's reproductive materials seems to have limited application to potentially more complex future scenarios. Moreover, given the variety of regulatory approaches to the control of the human body and its parts in English law, this judgment has arguably added to what was already regarded as “a contradictory jumble of legal principles”. ¹⁷ Of course there may, upon fuller review of the arguments surrounding property rights in the body, be great merit in heading in this direction, but that review needs to occur. In this respect, counsel for the respondents’ warning to the court is noteworthy; as the court reflected, counsel had urged:

[A]gainst any piecemeal and ill-considered attempt to develop [the common law] in order to cater for modern conditions, of which, of course, the present cases yield one example out of many; and he invites us to rely on Parliament either to update the concept of ownership in this connection or to make further provision which, without updating it, would remedy any perceived injustices in other ways.” (at paragraph 29) ¹⁸

That the court paid no heed to such comments is curious; however, the failure to explore alternative extant avenues of redress is even more curious. As argued above, the contentious area of property could have been avoided entirely. In this respect, the Conventional Award approach merits serious consideration (and development); ¹⁹ rather than interfering with other lines of argument, it would have highlighted the presence of a quite promising alternative remedial route (which had been judicially created at the highest level, the House of Lords). Given the court's sympathy to the claims of these men, alongside its willingness to adjudicate in the future upon cases involving products of a living human body intended for use by the persons whose bodies have generated them, it will be difficult to resist cases which seem to incrementally build on Yearworth. Insofar as the property analysis seems to accord poorly with alternative factual scenarios, some rethinking is necessary. Given the presence of strong policy arguments that indicate that “property in the body” is an area best left for Parliament, an exploration of the potential reach of the Conventional Award route for compensation purposes alone seems appropriate. At a point where it is clear that victims of procreative mishap possess an appetite for redress, in what is surely to become an intellectually demanding area of law, the courts cannot afford to stumble from case to case.