13 vials of sperm in a Vancouver sperm bank are to be shared equally between a lesbian couple following their relationship breakdown.
This is not a court case about a traditional divorce between a mother and father disputing how to split up furniture, cash and child-rearing.
It is a modern-day dilemma between a separated lesbian couple, arguing over what to do with leftover sperm that both women had used to conceive a child.
The crux of the unique case, B.C. Supreme Court Justice Loryl Russell writes in her decision, is whether the 13 vials of semen stored in a Vancouver sperm bank should be considered a piece of property.
The woman who sued for access to the sperm argued it was "logical" to treat the male gamete as property while her former partner disagreed, describing the matter as a moral issue.
Russell ultimately ruled that the 13 vials should be divided equally between the feuding ex-lovers - and that if the 13th tube can't be split in two, then each will get six vessels and the claimant can pay the respondent $125 for her half of the final one.
"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," Russell wrote in a judgment released Thurs-day. "There is no intent on my part to trivialize this matter."
The former couple purchased a number of vials of sperm from a U.S. clinic for $250 each in 1999.
The sperm came from the same male donor, and each of the women used it to have a baby - the first in 2000, and the second in 2002.
When the couple split in 2006, they agreed to share custody of the two children and divided all their assets. However, they forgot about the 13 tubes stored at the Genesis Fertility Clinic in Vancouver.
In 2009 one of the women, known as J.C.M., met a new partner and wanted to have another baby who was biologically related to the children she had with her former spouse, known as A.N.A.
In September 2011, J.C.M. emailed her former partner and offered to pay $250 for each of the six and a half tubes of sperm that she considered to be A.N.A.'s. A.N.A. replied that she would rather the sperm be destroyed.
J.C.M. contacted the U.S. clinic, Xytex, but the sperm donor had "retired" from making donations. Xytex said it had no contact information for him.
Through a sperm donor database, J.C.M. tracked down another woman who had given birth to children using sperm from the same donor, but that women said she had no leftovers.
So, J.C.M. turned to the courts. J.C.M.'s lawyer argued there is "no logical reason to treat the gametes as other than property," citing case law from the U.S. and the United Kingdom, as well as one ruling from Alberta, on cases that are similar - but not identical - to this one.
The claimant's lawyer also contended that awarding the sperm to one woman does not create a parental obligation for the other.
However, A.N.A.'s lawyer, Georgialee Lang, argued there is no federal or provincial legislation, or any Canadian case law, that treats sperm as property.
"She argues the issue of treating sperm as property is a moral one," Russell wrote.
Russell noted the issue is an emotional one, but said one reason for her ruling was that these vials of sperm had been treated as property from the outset: by the donor, by the U.S. clinic, by the Vancouver sperm bank, and by the former couple.
"They have made use of it to their benefit," Russell wrote, adding she rejected A.N.A.'s moral objections to the commercialization of reproduction since the woman had bought the sperm in the first place.
Source: Lori Culbert, Vancouver Sun April 27, 2012