Bundesgerichtshof (Sixth Civil Senate) 9 November 1993, BGHZ 124, 52, with case note.
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mrs Irene Snook
[Before undergoing an operation which would leave him sterile, the 31 years old plaintiff had some of his sperm frozen in order to have children later. Through the fault of the university clinic, this sperm was lost. The plaintiff demands damages from the clinic. Both lower courts rejected his claim. The Federal Supreme Court quashed the appeal decision for the following reasons]
According to the Appeal Court, the plaintiff’s general right of personality was not infringed. The destruction of the sperm deprived him of his liberty to decide whether, how, and when his sperm was to be used for fertilisation; but this freedom was not covered by the general right of personality, which only protects this legal position in principle. The general right of personality protects personal integrity but not personal activities.
II. These deliberations are legally unsound.
2. As a result of the negligent destruction of his sperm, the plaintiff’s claim for damages is well founded.
a) According to a controversial but more or less dominant legal opinion, a part of the body separated from it becomes a physical object, with the result that a person’s right to his own body is transformed to a right of ownership in the separate part of his body (references). In legal literature, some authors are of the opinion (reference) that this result applies to frozen sperm; and the Appeal Court follows this view. Accordingly, the destruction of the sperm would not amount to a physical injury to which § 847 BGB links a claim for damages for pain and suffering.
The Court holds that this view is too narrow. This Division has given the concept of physical injury, as expressed in §§ 823(1), 847(1) BGB, a wide meaning. It considers the right to one’s own body as a legally formulated section of the general right of personality. It also interprets as “physical injury” – expressly mentioned in § 823 I BGB and treated separately from “impairment to health” – every unjustified intrusion of bodily integrity, unless the owner of the right has given his consent (references). It is not the physical matter as such that is protected by § 823 I BGB but rather a person’s entire area of existence and self-determination, which is materially manifested in the body (references). The provisions of § 823 I BGB protect the body as the basis of human personality.
In view of modern medical possibilities and in respect of the body as object of the protected right, a person’s right of self-determination, emanating from his right of personality, acquires additional significance. Medical advances allow the extraction of body parts for later re-implantation. This applies for instance to transplants of skin or bone parts intended for transplantation to other parts of the same body. Where, with the consent of the person affected, parts of a body are taken out in order later on to be re-implanted as a means of preserving or improving bodily functions, the legal opinion that § 823 I BGB comprehensively protects corporeal integrity in order to guarantee a person’s right to self-determination will lead to the following result. In view of the protective purpose of this paragraph, these extracted parts continue to form a functional unity with the remaining body even during their separation from it. It therefore seems necessary to classify the damage to or destruction of such extracted body parts as a physical injury in the sense of §§ 823 I , 847 BGB. The result is different where, according to the wishes of the person concerned, the separated parts of his body are not intended to be used or re-integrated at a later stage. For such cases of final severance, the normal legal consequence applies, i.e. that at the point of separation the severed body parts lose all links to the protected entity of the “body” and become “objects” in the legal sense. The reason for the latter result lies in the concept that, given every person’s right to self-determination, the body and its now separate parts no longer form a functional unity. This outcome applies in particular to donated organs which, under the will of the donor, are intended to be implanted into another person, or to blood donated for third persons. Even in such cases, claims for damages can arise if the donation is used or destroyed in breach of the express or tacit intentions of the donor. For even under these circumstances the right of personality influences the right to ownership in these objects (references) although only under the specific restrictive preconditions developed for cases of injury to the right of personality.
b) On the basis of these considerations, the frozen sperm, which the owner of the right of personality intended to use for future procreation, represents a special case. On the one hand, the sperm has permanently been separated from the body. On the other, it is intended to fulfil a bodily function, i.e. that of procreation. In any case when, as here, the preservation of sperm was meant as a substitute to the lost capability of procreation, this sperm is no less valuable than a woman’s egg cell or other bodily parts in respect of: 1) the corporeal integrity of the owner of the right of personality and of personal self-determination, which is part of it, and 2) due to the importance and its particular potential. As explained above, even after their separation from the body, the latter are covered by the protection of §§ 823 I and 847 I BGB. As with egg cells, taken from the body to be fertilised and re-implanted, the frozen sperm represents for the owner in this particular case, the protected right. For it is his only chance of using his bodily functions in order to sire children to whom he can pass on his genetic material. In view of the similarity and equal value of both bodily parts: a) for their need to be protected against tortious acts and b) because of the protective purpose of the relevant tort provisions, this equal status must also be manifest in the legal consequences provided by the law of torts. Even in cases like this, where frozen sperm is not directly covered by the factual text of the tort provisions which outline and determine the protected right of corporeal integrity, those provisions must, nonetheless, at least be applied analogically given the above-described circumstances. The general right of personality legitimises such extensive and extended legal application of §§ 823 I and 847 I BGB for a person whose right of personality is not differently or less intensely affected than a woman’s right is by destruction of her egg cells, extracted from her body and intended for re-implantation. Just like the woman in that case, the plaintiff had a claim for damages for pain and suffering based on § 847 I BGB.
3. (There follow general statements on how to calculate the amount of damages for pain and suffering due and some specific guidelines for this particular case.)
Under German law, § 847 BGB, claims for compensation for pain and suffering are only admissible in cases of physical injury and deprivation of liberty but not in cases of damage to property. In order to provide a claim for damages the court, therefore, had to treat certain parts of the body, separated from it, not as objects but rather as remaining parts of that body. Since in this case there was no pecuniary loss, a claim for damage to property would have failed. The complications that arise from §253 BGB are discussed in greater detail in B. S. Markesinis, The German Law of Obligations, vol. II, The Law of Torts, 3rd ed. (1998) pp. 25, 66, 380-90.