Department of Philosophy, School of Philosophy, Theology & Religion, University of Birmingham, Birmingham, UK.
J Med Ethics. 2011 Dec;37(12):747-51. doi: 10.1136/jme.2010.042036. Epub 2011 Jun 13.
In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful. This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men 'had ownership' of the sperm, and that compensation was thus due on the grounds that the men's property had been destroyed. We first argue that the claim is erroneous and enhances the tendency towards the commodification of body parts. We then suggest that the men could have been compensated for the harm done to them without granting property rights, and that this would, at least in philosophical and ethical terms, have been more appropriate. To help illustrate this, we draw on a parallel case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. Finally, we suggest some possible ethical and practical problems if the proprietary view expressed in the UK ruling were to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, a 'no property in the body' approach should be the default position in cases of detached bodily materials, the alternative being significantly ethically problematic.
在英国最近的一个案例中，六名男子在接受癌症化疗治疗前储存了精子，以防治疗后不育。但精子储存不当，结果被无意中销毁。这些男子起诉了储存精子的国民保健制度信托基金，并最终胜诉。本文质疑判决的依据和理由，即男子“拥有”精子，因此应给予赔偿，理由是男子的财产被破坏。我们首先认为，这一主张是错误的，加剧了将人体部位商品化的趋势。然后我们提出，男子可以因所受伤害得到赔偿，而无需赋予其财产权，这从哲学和伦理角度来看，将更加合适。为了说明这一点，我们借鉴了法国法律中的一个类似案例，在该案中，一对其胚胎被销毁的夫妇明确被剥夺了对胚胎的所有权。最后，如果英国判决中表达的所有权观点在法律中占据主导地位，我们提出了一些可能的伦理和实际问题，特别关注生物库中遗传信息的储存。我们的结论是，尽管赔偿要求不一定应被排除，但在涉及分离的身体材料的情况下，“身体无财产权”的方法应是默认立场，否则将存在重大的伦理问题。
