A proposal for recognising semen as a special class of property

Benjamin Hofmann1

1Law Graduate, Melbourne, Australia

This presentation will focus on the proprietary rights in semen, particularly in relation to artificially assisted human conception that is conducted posthumously. Presently, these rights arise due to exceptions to the long-standing legal rule that there is ‘no property in the human body/a corpse’. The contention is that with the evolution of assisted reproductive technology, the law must also evolve.

The presentation will begin by outlining the two types of posthumous reproduction cases: first, the ‘usual’ type of case involving the death of the gamete provider after extraction (ie: semen in storage) but before the use of the gametes; and second, the increasingly common type of case involving posthumous extraction with the intention of using the semen for artificially assisted conception. The former has led to the generally accepted position that some proprietary rights must exist in stored semen and that those rights can transfer upon the provider’s death. The latter, however, present the relatively novel situation of the creation of proprietary rights when they first vest in the intended beneficiary.

The presentation will consider the recent case law, and it will assert that the successive court decisions recognise the existence of rights in semen in this context, albeit through the use of exceptions to the ‘no property’ rule.

The presentation will ultimately contend that the law must instead adopt a commonsense approach: to recognise the existence of a special class of property in semen, thereby foregoing the need to identify a relevant exception to an historic rule that is merely a legal fiction in this context.


Biography:

Benjamin Hofmann completed an LLB at the University of New England in 2017, and he is currently completing a Graduate Diploma in Legal Practice at The College of Law. Benjamin’s research interests relate to beginning of life issues.