Page last updated at 11:08 GMT, Wednesday, 4 February 2009

Cancer sperm men win court battle

Southmead Hospital
The incident occurred at Southmead Hospital in Bristol

Six male cancer patients have been told they can claim damages after a hospital freezer broke down and destroyed their frozen sperm.

Five said they had suffered psychiatric problems as a result of the incident at Southmead Hospital in Bristol.

The Court of Appeal ruled the samples, given after the patients were warned chemotherapy could make them infertile, belonged to the men.

The judges ruled the six men could therefore claim damages for the loss.

Mental distress

The men who did not wish to be named, had assumed their prospects of fathering children had been destroyed.

Some were not left infertile by the treatment but one has since died.

The hospital trust had denied liability, claiming the sperm samples were not property in the legal sense and there could be no damages claim.

But in his ruling, Lord Chief Justice, Lord Judge, said: "The men had ownership of the sperm.

"The sole object of their ejaculation of the sperm was that, in certain events, it might later be used."

Lord Judge, Master of the Rolls Sir Anthony Clarke and Lord Justice Wilson overturned a County Court judge's ruling which found the men had no claim against North Bristol NHS Trust.

The three appeal judges ruled the men could now claim for psychiatric injury or mental distress. This hearing will now be heard at Exeter County Court.

In his ruling, Lord Judge said: "The (hospital) unit extended, and broke, a particular promise to the men, namely that the sperm 'will be stored... at minus 196C'.

"The appeals raise interesting questions about the application of common law principles to the ever-expanding frontiers of medical science."

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