The case involves two women, identified in a court judgment only by their initials, whose eight-year relationship ended in 2006.
The couple turned to a sperm bank in the United States in 1999 and bought sperm from a single, anonymous donor and used it to have two children. The remaining donor sperm is currently stored in vials known as sperm straws at a Vancouver fertility clinic.
In 2007, the women reached a separation agreement, which divided their property and outlined custody of their children, but didn't deal with the fate of the 13 sperm vials.
One of the women, referred to as J.C.M., asked the B.C. Supreme Court to give her the sperm so she could have another child. The other, A.N.A., asked for the sperm to be destroyed, arguing that allowing another child to be born using the same sperm would confuse the couple's existing two children.
"I do recognize that sperm used to conceive two children for two loving parents does not have the same emotional status as a vehicle or a home," Judge Loryl Russell wrote in her judgment, posted to the court's website this week.
"Ultimately, however, this claim involves a dispute over the sperm straws and their disposition. ... I am persuaded that on the facts of this case the sperm straws that remain at Genesis (Fertility Centre) should be treated as property and divided between the claimant and respondent as such."
J.C.M. has since started a new relationship and wanted to use the same donor sperm to ensure her new child would be biologically related to his or her siblings.
The court ruling notes J.C.M. contacted A.N.A. last September, offering to buy A.N.A.'s share of the sperm, which cost $250 per vial. A.N.A. responded that she wanted the vials destroyed.
A.N.A. argued there is no provincial or federal legislation in Canada and no case law that treats sperm as property, which she described as a moral issue. She also claimed the birth of another child using the sperm "complicates and further fragments the two households."
But Russell concluded it was "speculative" to claim allowing J.C.M. to use the sperm would have any effect on the couple's existing children.
As for the moral question about treating sperm as property, Russell said the women, including A.N.A., treated the sperm vials as property when they bought them.
"The court is ill equipped to handle moral and philosophical arguments," wrote Russell.
"The sperm has been treated as property by everyone involved in the transaction, from the donor to Xytex (the sperm bank), Genesis and the parties. It has been purchased; the parties have a right to deal with it. ... The respondent’s moral objections to the commercialization of reproduction or the commoditization of the body seem to me to be too late."
Russell ordered the sperm to be divided evenly between to two women, leaving each with six-and-a-half vials. If for technical reasons individual vials cannot be split in half, J.C.M. will receive seven vials and pay A.N.A. $125 for the extra half-vial.
"Should A.N.A. wish to sell her share of the gametes to J.C.M. that will be her prerogative," wrote Russell. "She may dispose of them as she wishes."
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