You
may have recently read about the woman who is claiming that her husband’s sperm
should be considered a matrimonial asset (Ayesha Vardag writing for The Guardian this week).
Marital
assets are generally considered to be those that come into being during the
marriage through the joint efforts of the parties, or that are intended for the
joint use and enjoyment by the parties regardless of the source. These principles have come to us through the application
and interpretation of s.25 of the Matrimonial Causes Act 1975, most notably in
White v White and Miller v Miller. Once
a couple is married, it could be argued that there is an agreement to use the
husband’s sperm, and by extension genetic material contained within, exclusively
for the benefit (and enjoyment) of the family.
After all, most wedding vows include words to the effect of “forsaking
all others”. But is giving someone property rights in
another person's reproductive cells going to far?
The
woman is basing her argument on compassionate grounds. Her husband’s sperm could be used to help
multiple couples conceive children. Once
those children turn 18 they are allowed to discover the identity of the
donor. The wife is concerned that these
children will come to find their biological father which will impact hugely on
their own family, in the same way that a child from an adulterous relationship
might do. She is therefore campaigning
for married men who wish to donate sperm, only to be allowed to do so with the
written consent of their spouse
If
sperm was assigned as a matrimonial asset, which the wife would undoubtedly
have an interest in, would she have rights of access? If sex was denied, or the husband did not
want children, would a wife have a legal remedy to allow her access to her
husband’s swimmers? What about if the
husband had an affair, or spends an intimate night with a dirty magazine, could
she bring criminal charges for theft against the mistress, or get damages for
loss? Perhaps she could trace her claim
to the genetic material into the offspring of any illegitimately conceived
child? I am perhaps descending into
absurdity and I think that there is a more fundamental argument than the
property status of sperm which needs to be considered, that of personal
autonomy.
What
this woman is asking is that a wife should have a say in what her husband does
with his own body and that the marriage contract justifies this. What then of the status of marriage? Is it
superior to personal autonomy or should the words ‘forsaking all others’ convey
a legal interest in the sexual activities and reproductive material of your
spouse. If a wife can say what her
husband can and cannot do with his sperm, then what rights should that give the
husband in relation to the wife’s eggs, and genetic material and what rights
would exist in relation to a fertilised embryo?
Should a wife only be able to terminate a pregnancy, or undergo a
hysterectomy or oophorectomy (removal of ovaries) thus disposing of matrimonial
property, with the written consent of her husband? Each of those procedures could be seen to
have a huge impact on the family life so should the husband not have a
say? Conversely, could the husband
insist on an abortion because it would have a huge and unsettling effect on
family life? Surely, no one should be able to tell someone that they must or must
not have children, or how they should go about it, no matter what social
contract that exists between them.
