Does your wife co-own your sperm? Does your husband co-own your eggs?

From Jackson v. Jackson (N.Y. trial court Dec. 30, 2013), discussed in this post:

The common legal principles that have been developed by case law to resolve difficult questions of property law within the context of a divorce action are singularly unhelpful in this case. The petitioner clearly owned, prior to the marriage, the egg from which the fetus developed. On the other hand, the respondent impregnated the petitioner with sperm he acquired after the marriage.

[Footnote:] The general understanding is that the female of the human species possesses at birth all the eggs that will ever be available for reproduction. This a very simplified description of the process as only one mature ovum is produced during each menstrual period from an un-matured egg called an oocyte. The male of the species, on the other hand, produces sperm cells each day which mature over a period of about 90 days and, if then not ejaculated, are reabsorbed into the body.

In practice, this will rarely be relevant, since the main valuable use for which married couples put eggs and sperm — to create a baby — will usually be governed by family law, not community property law. But we can imagine a fun hypothetical: The wife sells her egg (assume such a payment is legal, and is treated as payment for the egg and not just compensation for the inconvenience caused by egg donation). The husband sells his sperm, a considerable time after the marriage takes place.

In a community property state, are the proceeds community property or separate property? Under the court’s rationale, it would seem that the egg proceeds are the wife’s own property and the sperm proceeds are community property, simply because the egg was created before the marriage and the sperm was created during the marriage. Is that right under community property law? (My vague sense is that it may be, but I’m not by any means an expert on this.) Is this a sensible result?

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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