What’s Mine is Yours?: “Live” Gametes as Property and Repercussions for Reproductive Freedom

What’s Mine is Yours?: “Live” Gametes as Property and Repercussions for Reproductive Freedom

Lorentz Hansen

The right to own property, legally enshrined in the Fifth Amendment to the United States Constitution, is a fundamental American right.[1] The Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”[2] Property rights cover an individual’s rights to something in relation to other persons,[3] including the rights to: possess, use, exclude, dispose of, transfer, and remain free from government seizure without just compensation.[4]

Courts have for decades treated human gametes as legal property when cryogenically preserved outside of the human body, explicitly referring to preserved gametes as a “unique type of ‘property.’”[5] The property rights to those gametes only become relevant, however, once the gametes have left the body and “been transferred to a commercial middleman.”[6] Gametes should be treated as legal property while they are still “live”—meaning inside of the body rather than extracted and/or preserved. The rights to “live” gametes would (as with cryogenically preserved gametes) become relevant when the gametes transfer from one party to another with the potential to make new matter, such as an embryo. During heterosexual intercourse, therefore, the property rights to the live sperm would transfer to the person able to become pregnant. Assuring property rights to live gametes would provide a stronger constitutional basis for reproductive autonomy than the implied “right to privacy” in the Fourteenth Amendment that the Supreme Court relied on in Roe v. Wade,[7] which has been constantly challenged since the ruling.[8]

This Note argues that resting the right to an abortion in the property rights to live gametes more accurately characterizes individuals’ relationship to their gametes in modern society and provides a more impervious, constitutionally explicit basis for reproductive rights. Under this theory, the exchange of live sperm from one person to another during heterosexual intercourse would constitute a transfer of property, bringing with it the corresponding property rights to the gametes. Part I reviews the current state and sources of the right to an abortion and ends with a summary of the critiques and challenges to Roe. Part II discusses ways in which the law has and continues to consider certain kinds of human matter—such as organs, cryogenically preserved gametes, ideas, and corpses—to be property. Part III reviews the Fifth and Fourteenth Amendment bases for treating human material as property. Part IV discusses the potential repercussions of considering live gametes as property for abortion and reproductive rights.

[1] Gerald Friedman, The Sanctity of Property Rights in American History, U. Mass. Amherst Pol. Econ. Rsch. Inst. 3–5 (2001), https://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1008&context=peri_workingpapers. 

[2] U.S. Const. amend. V.

[3] Rebecca L. Rausch, Reframing Roe: Property over Privacy, 27 Berkeley J. Gender L. & Just. 28, 30 (2011).

[4] Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 369 (2000).

[5] Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 283 (Cal. Ct. App. 1993).

[6] Lisa Milot, What Are We-Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053, 1084 (2020).

[7] Roe v. Wade, 410 U.S. 113, 115 (1973).

[8] Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, 6–8, 14 (1993).


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