Six cancer sufferers who had their sperm frozen in case treatment made them infertile are appealing a court ruling that a hospital that destroyed the samples is not liable for damages.

The six launched their unique compensation claim after a long-term freezer tank at Bristol’s Southmead Hospital failed in June 2003. One of the men has already died and some of the remaining five are not expected to regain their fertility so the mishap robbed them of their only chance of ever fathering children.

The hospital’s managers, North Bristol NHS Trust, admitted breach of duty but, in earlier this year, a county court judge dashed the men’s hopes of substantial damages payouts. Judge Jeremy Griggs compared the sperm samples to hair cut off by a barber and toenail clippings before ruling that the men ceased to have any property rights in their own sperm once it had left their bodies. For this reason, he said, their destruction could not be compared to physical injuries suffered due to medical negligence and so the claim fell outside the legal remit of traditional “personal injury“.

James Townsend, for the five surviving men and the dead man’s widow, told the Court of Appeal: “This is a grey area but, looked at correctly, we say this is a classic case of personal injury”.

The sperm was “awaiting further use” for exactly the same purpose as it would have been had it remained in the men’s bodies and, although in the hospital’s possession, the samples could only ever be used at the men’s direction, he added.

However, the trust’s lawyers argue that “nobody owned” the sperm samples, which were not capable of amounting to “property” in the legal sense, and that the six men suffered no “personal injury” for which they would have a right to claim compensation.

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