Here’s a recent story from Canada that is completely consistent with the view that sperm is property. It may be a bit off the current topic(s?) of discussion, but I think it is worth a quick comment.
A lesbian couple living in British Columbia broke up in 2006. They agreed to divide all their property but forgot about the 13 straws of sperm stored in a fertility clinic. They had used the sperm to conceive two children–each woman having given birth to one of them.
And there things sat until 2009 when one of the women (JCM) wanted to have another child with her new spouse. (I take it that the new spouse was also female.) JCM asked her former partner, ANA, if she could use the sperm. I think she wanted to have a child who was a full genetic sibling to her first child although it is possible that the new spouse was going to become pregnant and so a sibling conceived with the sperm would be one-half genetically related.
In any event ANA said no. She preferred the sperm be destroyed. The case went to court and the story here is that Justice Loryl Russell issued what is really a perfectly ordinary marital property decision. Of the thirteen straws, each woman gets six and the seventh (if it cannot be divided) goes to JCM who must pay ANA 1/2 the value of that straw ($125). Presumably ANA is free to destroy her half of the sperm but, more importantly, JCM is free to use her half.
The case actually makes an interesting contrast to what is a more common separation issue–the disposition of frozen embryos. I’m not sure I’ve written about this before. (I’ve just looked over the things that turn up when I search “frozen embryos” and I don’t see it, anyway.)
The most common fact patterns is that husband and wife create embryos for IVF and then split up. What happens to the embryos if they do not agree? The thing is, in the embryos the genetic material of the husband and that of the wife are inextricably combined. If one wants to use them, the other will become a genetic parent.
This is quite different. The genetic material didn’t come from either woman and neither will be a genetic parent as a result of its use. But each already has a child who will be genetically related to any child conceived with the sperm.
From my point of view, I don’t see what else the court can do but treat this as property. The law is actually pretty limited in its categories. In general things are either property or people. This isn’t people, so it must be property. And why not divide it? Why would either woman have a superior claim?