A newspaper columnist has admitted “stealing” her husband’s sperm. But can sperm be stolen? The position in Scots law is not as straightforward as you might think. Steven Raeburn reports.



You may have thought Glenn Close’s character in Fatal Attraction -who gave us the term Bunny Boiler- was only a fantasy concoction to represent the worst excesses of the obsessive woman. Well, Liz Jones of the Daily Mail has ranked the competition up a notch with her revelation that she stole her husband’s sperm without his knowledge in order to attempt to impregnate herself, their respective views on parenthood presumably being somewhat less than compatible.

She also declares that she tried this before with a prior lover. One hopes she takes time to reflect why her sexual partners are somewhat reluctant to settle into the family way with her.

That aside, from a legal perspective, can sperm actually be stolen? One wonders if she considered, leaving aside the moral, emotional, behavioural and psychological eccentricities of her actions, if she considered the legal consequences. Stealing sperm makes you a thief, right?

Or does it?

In Scotland, the legal position is evolving rapidly, due to two recent cases. The common law starting position has historically been that there are no property rights in the body, which changed in 1998 when it was ruled that if a body part undergoes some form of change which alters its status, it can become property. The medical skeleton is perhaps a good example. It becomes a piece of property after it has been altered and hung in the corner of a lab. This was decided in the Kelly case in 1998, in which body parts were stolen and used by the thief to make artworks. The court modified the common law principle that no property rights existed in the body, because it had been transformed into an artefact.

The position of donated sperm is also fairly clear. You offer it up and pass it into the custody of the donor service, in full knowledge of what you are doing. The sperm in that instance is given voluntarily, and your rights in property (insofar as they are implied) are surrendered to the donor clinic.

The position becomes interesting though in connection with your own body, if you are still alive. Who owns your hair if it cut off. Or your fingernails? Or what you deposit down the toilet? In the USA, Neil Armstrong stopped using his local barber when he learned his shorn locks were being sold on at a tidy profit. A body part that becomes detached would presumably have no owner, if it remains unchanged and does not undergo a transformative process, right?

Wrong.

In 2009, a decision by the Court of Appeal in the Yearworth case ruled on this very issue, and in particular in relation to sperm. In that case a group of men undergoing cancer treatment donated sperm with an IVF clinic to safeguard against possible infertility after the treatment, although the sperm was lost after the company’s freezer system failed.

The argument they advanced was that they had a right of property in the donated sperm, and were entitled to be compensated for the loss of the sperm. And they won, establishing that at least in principle, a man can own his sperm. The case was settled in the English Court of Appeal. In the absence of Scottish precedent, it is likely to be persuasive.

But what abut sperm that is not frozen or entrusted to care by an IVF clinic? Sperm that just emits from the body in the traditional way?

In the Liz Jones example, she describes the theft like this:

“I resolved to steal his sperm from him in the middle of the night.

“The ‘theft’ itself was alarmingly easy to carry out. One night, after sex, I took the used condom and, in the privacy of the bathroom, I did what I had to do.”

She doesn't elaborate further.

In the Yearworth case, the pursuers successfully argued that the IVF facility’s negligence had interfered with their right in property. This creates a distinct demarcation between that right and the duties of the clinic.

The question that remains to be decided is whether that right in property subsists once the sperm is, shall we say, surrendered. A man in that position could certainly argue that he had released his sperm in the expectation that it would be discarded, perhaps just as he would discard a pair of old socks. The Scots law maxim is that lost property never becomes ownerless, but if you willingly toss it away, that cannot apply. 

There is clearly a movement towards recognising some right of property in the body for the person from whom it is taken. But if you abandon your property, is there anything in the law to prevent someone being free to pick it up and use, even to impregnate themselves?

It is a compelling argument. And this is where the grey area is. Perhaps the courts would focus on the intent of the man. If he thought his abandoned body fluid was to be used to force him to become a genetic father against his will, it is perhaps likely the courts would favour his legal rights, unless there was an indication he had some intention of permitting a sexual partner to act as Liz Jones did.

Perhaps one or two men out there may now be thinking about changing their post-coital disposal routines, or perhaps thinking carefully about the psychological make up of those they take into their intimacy. We’ll be watching carefully to see if the numbers of vasectomy candidates takes a spike after this. Liz Jones ultimately remains childless, she says, And the husband of the story is now an ex-husband, but one result she has certainly achieved is that many of us won't look at our sperm the same way again. 

The Firm is grateful to Graeme Laurie Professor of Medical Jurisprudence, Director of Research, School of Law at the University of Edinburgh for his assistance in researching this article.

Image Credit: Corbis