This holding troubles me unless the deceased husband consented (prior to his death, obviously) to having his sperm extracted post mortem. I'm no property guru; but, absent that consent, I would argue that the deceased has the paramount right to his own remains (and dignity). Now, if a state or country had a law permitting post mortem organ/tissue/blood/bodily fluids harvesting in the public good, I might think differently about the deceased's rights -- unless a person has the opportunity before death to opt out of having her or his organs harvested post mortem and this deceased opted out.
* * *
Neil's post raises another quandary that I've been pondering periodically. The Uniform Commercial Code defines "goods" to include "the unborn young of animals." See UCC §§ 2-105(1) & 9-102(a)(44). Neither UCC Article 2, which governs sales of goods, nor UCC Article 9, which governs security interests in, inter alia, goods, defines "animals." Surely, humans are animals: the most upright-walking, biggest-brained (relative to body size) mammals on the planet. Therefore, just as surely, gestating humans or gestating humans-to-be (depending on one's notion of when -- at conception, at birth, or somewhere in between -- human life begins) are "the unborn young of animals." Likewise, just as a human animal may sell or grant a security interest in some of her postage stamp collection or her sporting goods; she may, at least in theory, sell or grant a security interest in some of her body (e.g., a cornea, a kidney) and its product (e.g., blood, an ovum). As such (although surely it was not the intention of either Article 2's drafters or Article 9's drafters), absent contrary preemptive law, UCC Article 2 governs -- and permits -- the sale of unborn humans, body parts, and bodily products and UCC Article 9 governs -- and permits -- security interests in them.
Section 1 of the 13th Amendment to the U.S. Constitution ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.") preempts selling born humans and may preempt taking a security interest in born humans; but it says nothing about unborn persons, body parts, or bodily products. Section 1 of the 14th Amendment entitles "[a]ll persons born or naturalized in the United States" to "due process of law" before any state may deprive that person of "life, liberty, or property." Again, nothing about unborn persons, body parts, or bodily products -- except that the 14th Amendment may prohibit the state from depriving a person of an unborn human (would this only apply to the biological female who carries the unborn human?) or a body part without due process of law. Most or all U.S. states allow a person to sell a quantity of human blood, plasma, or semen. Most or all U.S. states prohibit or strictly regulate selling viable human fetuses or human body parts (pre- or post-mortem). I don't know what position state or federal non-UCC law takes on selling fertilized human eggs. Neither federal nor any state's law, as far as I am aware, expressly permits or prohibits granting a security interest in unborn persons, body parts, or bodily products.
Does Australian, Canadian, English, Irish, New Zealand, Scots, Welsh, or other law known to anyone on this list deal with granting or enforcing a security interest in an unborn person, a human body part, or a human bodily product?
Thanks for any insights you can offer on- or off-list.
Best wishes,
Keith
Keith A. Rowley
William S. Boyd Professor of Law
William S. Boyd School of Law
University of Nevada Las Vegas
4505 S. Maryland Parkway, Box 451003
Las Vegas, NV 89154-1003
Tel: (702) 895-4993
Fax: (702) 895-2482
E-mail:
keith.rowley@unlv.edu
Chair, AALS Section on Contracts
Past Chair, AALS Section on Commercial and Related Consumer Law
Developments Reporter, ABA Business Law Section, UCC Committee
-----Neil Foster <Neil.Foster@newcastle.edu.au> wrote: -----
To: obligations@uwo.ca
From: Neil Foster <Neil.Foster@newcastle.edu.au>
Date: 05/23/2011 10:44PM
Subject: ODG: Property in gametes
Dear Colleagues; Even though it is only a decision at trial level, I thought others might be interested (since I recall we had some interest in the
Yearworth decision a while ago) in a recent decision in the NSW Supreme Court holding that a widow who had requested extraction of semen from her recently deceased husband, was entitled to possession of the semen. A very careful judgment with a good review of Australian and UK decisions:
Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 (18 April 2011)
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152086. In the end concludes (having accepted on authority of
Doodeward , and regarding
Yearworth as persuasive, that the semen could be "property") that the widow's right to possession arose because there was no-one else in the world with a better claim:
[91]....[I]n my view Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm.
Regards
Neil
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931