Our Data Ourselves: A Case Study of Sperm
Advances in biotechnology have facilitated the growth of the tissue economy, including the commodification of human gametes—sperm and eggs. Unlike eggs, and alone amongst human tissue, sperm are designed for exchange. They are readily extracted without the need for medical intervention and remain viable for a window of time without biomedical transformation. Yet these characteristics create challenges for the law in responding to ever more diverse contexts for the collection and utilisation of sperm. This is evidenced by the increase in applications to the court for extraction of sperm from deceased men and claims for their possession and use.
Broadly speaking, the characterisation of sperm before the courts is that of property, or at the very least quasi-property; a thing capable of an order for possession. Yet orders permitting post-mortem harvesting and utilisation raise complex questions about the basis for such decisions: both as to the reproductive autonomy of the deceased, and as to the grey area between what the law considers property and what it considers person.
This paper examines the law’s categorisation of sperm—from its natural state within the body of its progenitor up to the point of impregnation—to identify the inherent inconsistency of the law’s approach and the problematic consequences. It offers an alternative conceptualisation of sperm as a biological form of personal data, using the analogy of human gametes as a cryptographic key, requiring a match (a human egg) to unlock the reproductive potential they both contain. On this understanding of the nature of sperm, the consequences of intermingled data for the sperm donor—namely the creation of a potential new human—might provide a rationale for the law to determine permission to keep and to use sperm only where the donor has given active and ongoing informed consent. Consequently, this paper argues in favour of the legal categorisation of sperm even outside the body, and even post-mortem, as person and not as property.
Associate Professor Kate Galloway, Faculty of Law, Bond University
Kate’s principal academic interests lie in property law and legal education. She is a nationally recognised law teacher, using research-informed approaches to teach property law and in designing and teaching subjects that offer students a future-focussed view of legal practice.
Kate publishes and presents both in Australia and internationally in academic, professional, and community contexts. Her work encompasses legal education, property – particularly land tenure, sustainability, social justice, and gender equality. She is the editor-in-chief of the Legal Education Review, and the Queensland editor of the Alternative Law Journal.
In addition to her academic writing, Kate contributes regularly to various media outlets as a commentator on contemporary social justice issues, especially concerning gender equality. She is active on social media, blogging at https://kategalloway.net/.
Throughout her career, Kate has been involved in the community legal sector, including having worked to establish the North Queensland Women’s Legal Service and currently serving on the management committee of the EDO (NQ).
