Volume 19 (2011) / Issue 2
Abstract: In 2009, the English Court of Appeal upheld a claim, brought by a number of men, in tort and under the law of bailment for damage caused by the negligent destruction of stored sperm, an event that had caused them psychiatric injury or mental distress. Under both causes of action, the success of the claim in Common Law was based on recognition of the sperm as the property of the claimants rather than any personal injury. As highlighted in the case, 'Future claims may be not only in respect of stored sperm but also products of a living human body intended for use by the persons whose bodies have generated them'. The significance of the decision may, therefore, have wider repercussions not only in England and Wale but other Common Law systems. This article considers whether similar facts would give rise to similar or different outcomes were they to arise in Scotland, which has a mixed legal system with elements of Civil Law. In concluding this comparison, this article considers whether there is common ground that could provide a border-neutral solution.
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