The ownership of sperms and ova: towards a customary law solution
Abstract
Traditionally, the common law has denied recognition of proprietary interests in the human body, its parts, and separated substances. Hence, substances such as sperm and ova are not property and cannot be owned. Accordingly, where a person dies without leaving instructions regarding the disposition of his or her sperms or ova, such sperms and ova are non-transferable. This has raised concerns in the area of assisted reproduction where donations of sperm and ova have become common. In order to deal with the issue of property interests in donated ova and sperm, courts in Australia, the United Kingdom, France and the United States have revisited this traditional view of the human body and its substances, using novel legal arguments and approaches. While the courts in Ghana are yet to address whether human semen or ova are property, with the establishment of several sperm banks and medical facilities providing fertility treatments within the last couple of decades, it is likely that this could change very soon. Accordingly, there is the need for the Ghanaian legal community to define the legal position on rights and interests in human semen and ova, in advance of the issue arising before the courts. The article takes the view that Ghanaian customary law provides a solution to this want of clarity. Drawing on Ghanaian ontology, the article concludes that under customary law there is property in a corpse, and a corpse and the sperms or ova of a person who dies without leaving instructions regarding their disposition, are owned by the wider or extended family.