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Laws of Eve | Are eggs and sperms property?

Published:Monday | May 16, 2016 | 5:00 AM

The emerging laws in relation to reproductive technology are exciting. Currently, Jamaica has no legislation to govern the harvesting of eggs and sperms, their storage or their usage, like other countries.

In some of those countries, there is recognition that the laws still need to develop further, because questions arise in respect of which the courts are forced to resort to the common law for answers. Invariably, the common law solution is centuries behind the technological advancements that create the issues.

One very interesting case that was decided in British Columbia demonstrates the complexities in this area of the law JCM v ANA [2012] BCSC 584.

JCM and ANA (two women) were in a spousal relationship when they purchased sperm straws from a single anonymous donor at US$250 each. Each woman then gave birth to a child through assisted insemination using some of the sperm straws, and 13 sperm straws remained.

Years later, they separated and signed an agreement in relation to jointly owned property. ANA later started a new relationship and wanted to use some of the sperm straws to impregnate her new partner. JCM challenged ANA's right to use them and refused to accept payment for them.

JCM argued that the sperm straws were not property, and that the use of the straws in the manner proposed by ANA would adversely impact on the rights of their current and future children. JCM wanted to destroy the sperm straws.

Although the court's starting point was an acceptance that the human body, whether living or a corpse, could not be owned at common law, it was determined that those laws were outdated. (When those laws came into existence, organ transplant, fertility management and the harvesting of eggs and sperm did not exist).

The court ruled that the sperm straws are property and should be divided, keeping with the terms of the

settlement agreement. As there was an odd number of sperm straws, and presuming none could be halved, the court awarded seven to ANA and six to JCM. ANA was also ordered to pay JCW US$250 for the extra sperm straw she was awarded.

One wonders what decision would have been made if these facts were presented to a court in Jamaica.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com