It has long been a basic tenet of the common law that there can be no property interest in human bodies or body parts. However, exceptions to the rule have been recognized from the mid-19th century and developed over time. In the early 21st century, there have been interesting developments in the common law of Australia and England; with Australian Supreme Court judges and the English Court of Appeals casting aside existing exceptions; and finding property rights in human body parts, including gametes, by relying instead on a “rational” and “logical” basis to identify property interests in human body parts.
...This article considers the above questions by tracing the development of the common law in relation to property in human body parts in England and Australia from the mid-1800s to 2011. It follows lines of English and Australian case law from a presumption against property in human bodies, to development of a "work or skill" exception to the no-property rule and finally, to the introduction of a "rational" and "logical" approach to finding property in human body parts that transcends the traditional no-property rule completely. The most recent evolution of the common law approach to finding property in human gametes was established in the English case Yearworth v North Bristol NHS Trust  QB 1 and has been subsequently considered in a small number of Australian cases. This article considers and critiques the reasoning in the English and Australia cases, and finds that the development of the common law has mostly relied upon a shallow concept of property focusing on the physical qualities of preserved gametes. It concludes that finding property in preserved gametes in favour of their producer is a positive development of the law, but in future needs to be grounded in a more accurate concept of property as a relationship between legal persons with respect to an object.White concludes
Although recent cases in England and Australia have recognised gametes as a type of property without referring to the "no property" rule, the exact scope of the property interest in reproductive material is not entirely clear, and has been limited by the facts of the decided cases. For example, Pecar, Roche and S recognised a property interest purely for purposes of applying State Supreme Court Rules, while the posthumous estate case of Bazley recognised property in stored semen, insofar as it could be property held by a deceased estate. It was not until Yearworth that reproductive material was held to be property for purposes of a property-based claim when the English Court of Appeal found (at ) that "the sperm was the property of the men for the purposes of their claims in tort and … in bailment".
Recognition of robust property rights in relation to human gametes is necessary to ensure sufficient sanctions against the unauthorised storage, use and destruction of human gametes. Practically, theft is usually the only criminal charge that can be made against someone who uses or destroys human gametes without authorisation. Trespass to goods, conversion, detinue and breach of bailment serve similar practical functions in civil claims. As yet, there has been no case in Australia where a plaintiff has brought a property-based claim in relation to preserved gametes. However, given the long-standing willingness of Australian courts to push the boundaries of property rights in reproductive material, Yearworth is likely to prove persuasive, and actions in negligence and bailment may be successful.
Over the past decade, State Supreme Court judges have shown increasing willingness to advance Australia's common law by moving away from the strict "no-property" rule and recognising property in body parts, including gametes, without relying on the existing "work or skill" exception. English and Australian judges have declared both the rule and the exception "illogical" and have adopted a "commonsense" approach to finding property rights in relation to reproductive material. When deciding that human tissues, including gametes, are objects of property irrespective of whether work or skill has been applied, judgments have tended to focus on the physical characteristics of the tissue. For example, in Roche Master Sanderson stated (at ) that "[the] samples have a real physical presence … there is no purpose to be served in ignoring physical reality", while in Bazley White J referred (at ) to the gametes' "essential characteristics as frozen semen capable of being used". In Yearworth , too, the tangible qualities of the preserved semen supported the conclusion that it was property. This focus on the natural nature of the tissues lends itself to the "commonsense" conclusion that preserved human tissues, including gametes, are property because they are "things". However, the physical nature of preserved human tissue is not a strong justification for recognising property rights in it, and does not provide a strong basis for differentiating gametes from other human tissues. The concept of property is an artificial means of describing the relationship between legal persons with respect to things. Property does not exist in nature; it only exists in law. A more satisfactory reason for conferring property rights on producers of gametes rests in the notion of property as a relationship rather than a "thing". Through this lens, property is an appropriate legal mechanism to view the right of producers of gametes to direct storage, use and destruction of their gametes, and to take legal action against anyone who stores, uses or destroys their gametes without consent. This focus on the legal nature (as opposed to the natural nature) of property was touched on in Yearworth, when the court considered that conferring property rights on the men the best way to ensure they retained control of their gametes, despite the fact they were entirely reliant on the Trust for physical storage of the gametes. Practically, it is also crucial that property rights to gametes are conferred on the producer of the gametes, to ensure that there is always an identifiable holder of property rights.
The line of case law that has developed in Australia and England over the past two decades has realised the prediction of Rose LJ in Kelly (at 631) that "human body parts are capable of being property … even without the acquisition of different attributes, if they have a use or significance beyond their mere existence". In the case of preserved gametes, their significance lies in the potential to preserve and extend fertility in individuals who may otherwise never have a child of their own. To date, development of the common law has mostly focused on the physical nature of preserved human tissue, including gametes. In the future, a producer's property rights in their gametes may be founded on a more accurate concept of property rights as a relationship, whereby a legal nature is established independently of a physical nature.