Australia, Canada and New Zealand all share the Personal Property
Securities Act (well, Australia will as of October) and so I can give an
answer which broadly captures the position in all three from a secured
transactions point of view, albeit without any pretence to an
understanding of the constitutional arrangements in any of those
countries (even my own).

I wouldn't approach the recognition of a security interest in humans or
their various parts and emanations on the basis that a human is some
form of animal: biologically we are of course animals but there is all
sorts of legislation dealing with animals which does not take the
trouble to define away the possibility that we are animals.

I also suspect that trying to ram any of these human parts into the
definition of goods would be unnecessarily artificial (although it has
been done in the context of Sale of Goods legislation), but the PPSA
does not require this. All it requires that the item proffered as
collateral be personal property, and none of the various PPSA's have a
closed definition of personal property. So, as Courts give credence to
the idea of emanations such as sperm (which they did in Yearworth) being
property, then the possibility increases that the logical leap will be
made that it is personal property for the purposes of the PPSA. The
major argument against it will be the public policy against trafficking
in body parts. So far, I don't know of anyone here in NZ even trying to
take a security interest in body parts specifically, but since most
major creditors rely upon an all-embracing security interest ("all
present and future personal property"), all it will take is for a sperm
or blood bank to go under and a particularly bloodthirsty (sorry) bank
and we may see the point litigated. If you're of the view that science
fiction is a pointer to our future, we may not be far away from this
point: last year's Dr Who Christmas special featured a creditor which,
in return for its loans, would take a family member and put them on ice
until payment was made.

Barry

On 25/05/2011 6:50 a.m., keith.rowley@unlv.edu wrote:
> 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 <mailto:keith.rowley@unlv.edu>
>
> URL: http://www.law.unlv.edu/faculty/rowley/
> SSRN Author Page: http://ssrn.com/author=85258
> ContractsProf Blog: http://lawprofessors.typepad.com/contractsprof_blog/
> Commercial Law Blog: http://www.ucclaw.blogspot.com/
>
> /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
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/
>
>
>
>
>
>
>
>
>


--
*****************************************
Barry Allan
Senior Lecturer
Faculty of Law
University of Otago
PO Box 56
Dunedin
New Zealand
phone: ++(64) (03) 479 8830. fax:(03) 479 8855