Australia

Doodeward v Spence (1908) 6 CLR 406
A majority of the High Court found that the preserved foetus of a two-headed child may constitute ‘property’ if it has been altered by a process of labour. The majority of the court found that if the corpse (or part thereof) had been altered for the purpose of medical or scientific purposes it acquired a value and became property.

Pecar v National Australia Trustees Ltd (Estate of Urlich Deceased) (unreported, 27 November 1996) NSW
The Supreme Court of NSW decided that tissue samples are property for the purposes of the Supreme Court Rules. The court held that as the samples were fixed in paraffin they were transformed into objects capable of constituting property (even though the question of whether such property could be ‘owned’ by anyone was left in doubt).

AW v CW [2002] NSWSC 301 NSW
Barrett J decided that the Status of Children Act 1996 (NSW) did not authorise the taking of material from a dead body to allow parentage testing.

Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 QLD
The deceased male had stored sperm with an ART clinic before undergoing cancer treatment. After his death his de facto partner made a request that the ART clinic continue to store the sperm. The deceased had not consented to posthumous use and the ART provider argued that, given the lack of consent, the sperm should now be destroyed. White J disagreed. She found that the sperm was property which formed part of the estate of the deceased.

Edwards; Re estate of Edwards [2011] NSWSC 478 NSW
The Supreme Court had ordered the removal of sperm and later gave permission for the sperm to be taken out of New South Wales by the deceased’s wife. Hulme J found that the wife (who was also the deceased’s executrix) had a right to possession of his property, which included a right to possess the deceased’s body for the purpose of organising burial or cremation. The court found that this right of possession extended to the right to take possession of the sperm.

Re H, AE (No 2) [2012] SASC 177 SA
Gray J took the property approach of Bazley and Edwards and found that the frozen sperm was property which could be possessed by the deceased’s wife.

Re Section 22 of the Human Tissue and Transplant Act 1982; ex parte C [2013] WASC 3 WA
In this case, the husband and his wife had been trying to conceive for two years. The man had committed suicide after suffering severe depression. His wife, C, made an application to the court to retrieve the sperm. Edelman J found that wife could consent to tissue removal for medical purposes under the Human Tissue and Transplant Act 1982 (WA), s 22. Edelman J also thought that it might be possible for an order to retrieve sperm to be made under Order 52 r 3(1) of the Rules of the Supreme Court (WA).

United Kingdom

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 UK
The English Court of Appeal recognised that six patients whose sperm was stored while they underwent cancer treatment were entitled to bring an action in negligence or bailment for its destruction. The sperm had been destroyed accidentally by a mechanical failure.

R v Kelly [1999] QB 621 UK
The appellants in this case had been found guilty of the theft of approximately 35 human body parts from the Royal College of Surgeons. The defendants asserted that body parts were not property and therefore could not be stolen. The Court of Appeal upheld the trial judge’s view that the parts were property as they had been the subject of a ‘process of skill’ which meant that they had acquired a usefulness or value and were capable of being stolen.

United States

Washington University v Catalona 437 F Supp 2d 985 (2006) USA
A researcher was denied property rights by his employer. The researcher had recruited several thousand participants to provide tissue to his tissue bank for the study of prostate cancer. The researcher left the university for a competitor institution and tried to take the tissue bank with him. The bulk of the participants wished for the tissue bank to remain in the researcher’s control. Washington University stated that it owned the tissue bank. The court found for the university. It also directly disputed any property rights belonging to the participants.

Moore v Regents of University of California 793 P 2d 479 (Cal 1990) USA
The Californian Supreme Court found that a person had no rights of property in their own tissue, but that researchers who took the property and researched upon it could own it as property.

Greenberg v Miami Children’s Hospital 264 F Supp 2d 1064 (2003) USA
The plaintiffs were donors who had donated their tissue to a university researcher, so as to enable him to research into the genetic causes of Canavan disease, a degenerative disorder that causes progressive damage to nerve cells in the brain. The researcher successfully discovered the genetic link and his hospital employer patented the test. The patent meant that the hospital had control over who could access the test and how much to charge them. The donors sued the hospital for breaching informed consent, fiduciary duty, unjust enrichment, fraudulent concealment of the patent application, conversion and misappropriation of trade secrets. The Florida district Court on an interlocutory application refused to recognise that the donor had any property rights in their tissue.

Havasupai Tribe v Arizona Board of Regents and Therese Ann Marko, 204 P 3d 1063, 1067 (Ariz Ct App 2008)
The Havasupai Tribe brought a claim against the Arizona Board of Regents and others arising out of the alleged misuse of blood samples taken from members of the tribe in the early 1990′s. The tribe were approached and consented to participation in a project on diabetes. One of the researchers, Therese Marko proceeded to conduct research using the samples on schizophrenia and the samples were also shared without permission of the tribe and used by other researchers to conduct research into evolutionary genetics, inbreeding and human population migrations. The research produced academic publications which made conclusions about the origins of the tribe that were contrary to the beliefs held by the Havasupai tribe about their origins. When the tribe found out how the researchers had been using their blood, tribe members asked the University to withdraw them from the study and return their blood samples. The University refused and then members of the tribe filed two separate lawsuits against the University alleging cultural, dignitary, and group harm to the participants. An out of court settlement was reached in which tribal members received US$700,000 for compensation, funds for a clinic and school, and return of DNA samples.