Abstract

Throughout the common law world the notion that classes of property rights are closed in number is a prevailing concept across property regimes. This closed in number, or numerus clausus, principle has served property rights well. This principle has prevented messy property arrangements from arising – such as an agreement between two people where one owns a watch on Tuesdays and Thursdays, and the other owns it the rest of the week. However, as technology evolves, property is created in items that the legislature never contemplated. In this article we explore the seminal Canadian case of JCM v ANA and examine how numerus clausus and property no longer remain sufficient tools for delineating individual’s rights to tangible goods. Whether the sperm straws in question in JCM are property or not, and whether numerus clausus recognizes a category of property rights where human tissues or fluids capable of providing life or not, are contentious issues, not easily resolved. The argument is made that the numerus clausus principle is of marginal use considering such forms of unconventional property as human gametes. This is supported through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application.

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