The body as property - Grade: 72 PDF

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This essay considers the extent to which the law views the body as property. ...

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Name: Kate Daniels

Why should the law recognize the human body and its products as property?

Introduction Traditionally, the common law has been reluctant to grant property rights in the human body as ownership of the body can result in moral and ethical difficulties. However, clarification with regards to the propertisation of human biological materials has become all the more relevant with advances in modern day technologies that frequently require the use of biomaterials for research and artificial reproduction. Inevitably, this has led to legal disputes regarding ownership of the body and has raised a myriad of questions concerning the status of biological materials once they have been separated from the living body. The No Property Rule, Past and Present Generally, people including judges often speak as if property is a thing, or the attribute of a thing1, people in society are liable to make statements such as “my bag”, “my book” and “my body”. In this case it is clear that someone has ownership rights in said bag or book but according to the current state of property law, you cannot have ownership rights over your body. This traditional approach of the common law can be traced back as far as 1644 when Sir Edward Coke stated that a cadaver was “nullius in bonis”2 and could not be considered property. Subsequently, the no property rule has been implemented by English courts in Regina v Sharpe3 in which Erle J held: 1 Andrew Lyall, Land Law in Ireland Second Edition (Roundhall Sweet and Maxwell 2000). 2 Coke, Edward, The Third Part of the Institutes of the Laws of England (M. Flesher 1644) Cap 97, p.203. 3 (1856-1857) Dears & B 160.

‘Our law recognises no property in a corpse, and the protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground…’”4. Similarly, in Williams v Williams5 the deceased directed his executors by will to give his body to his wife for burial by means of cremation, but it was held a person cannot effectively dispose of a body in a will and any provisions made in a will regarding disposal of one’s body are not recognized in law. Australia relaxed this rule at the beginning of the 20th century in Doodeward v Spence6. The Australian High Court ruled on the status of the body of a two-headed stillborn baby preserved in a jar as part of an exhibition. Griffith CJ differentiated the preserved foetus from a mere corpse awaiting burial and declared: “A human body or portion of it is capable of becoming property…where a person has by lawful exercise of skill or work dealt with the human body so it is different he may own it”7. However, this case has not proved itself reliable in the common law world. Gibson LJ alluded to it in Dobson v North Tyneside Health Authority. However, he held that the autopsy did not give a body part different attributes by the application of work and skill. It was held the placing of the brain in a jar was insufficient in transforming it into an object capable of ownership. This reasoning is questionable as placing the brain in a jar is not significantly different to what was done to the baby in Doodeward v Spence; both were placed in a jar for preservation. These cases propose that the determining factor of whether property exists lies with the purpose for which the

4 Ibid. at 960 (Erle. J). 5 (1882) 20 ChD 659. 6 (1908) 6 CLR 406. 7 Ibid. at 406. (Griffith CJ)

body parts are to be used. However, it is unclear how an autopsy is substantively different to a dissection. Furthermore, the controversial no property rule has been used to justify the denial of people’s rights in valuable biomaterials. This has resulted in third parties acquiring rights and in some cases patents over excised body parts. It has developed into a situation where almost anybody can claim ownership and use – including for commercial purposes – of human biological materials, except the person who they are taken from. An example of this unethical practice is established in the fundamental case of Moore v Regents of the University of California8 where a patient’s spleen was removed from him during cancer treatment. Mr. Moore had consented to the treatment; however, he did not consent to the further use of his cells in future research. Nonetheless, doctors had created a cell line from his tissue, patented it and had generated a substantial amount of money. Mr. Moore contended to sue the doctors for conversion but the California Supreme Court rejected his claim stating he had no ownership rights over his cells. The traditional no property rule seeks to prevent exploitation; however, this case demonstrates the unethical exploitation of a patient which the law ultimately refuses to assist. In contrast to the above cases, Ted Slaven, an American man with Hepatitis B realized that his blood serum was valuable and could provide data to the medical industry which would help find a cure for Hepatitis B9. He could not work any longer and needed financial support so he approached various pharmaceutical companies looking for monetary compensation for the use of his valuable blood. The difference in this case to Moore was the fact that Slavin's doctor made 8 (1990) 51 Cal. 3d 120. 9 Sandra L. Alfano, Pharm.D, Chair, HIC-I, ‘Tissue Banking: Ethical Issues’ Yale University School of Medicine, 2006.

him aware of the value of his blood serum. In the case that Moore's doctor informed him of the significance of his tissue Moore may also have benefitted from income rights. However, it is unreasonable to believe that most doctors would follow such ethical procedures when the law does not demand them. Sperm and Embryos Contemporary case law in this area has initiated the transformation of the body and explicitly its products in terms of sperm and embryos from a “res nullius” into a “res” capable of being “property”. In such cases, the importance of property rights in things that are separated from the human body is highlighted. Such issues commonly arise in relation to research, or the storage, destruction and use of gametes or embryos. Recently, much of the case law revolves around the right of possession of sperm for the use of in vitro fertilization. Fortunately, American cases have refused the analysis in Moore and this is explored in Hecht v Superior Court10. The court of appeal declared that sperm deposits of a deceased could be seen as actual property in the eyes of the law. The court held that artificial insemination with sperm vials of a deceased did not in fact violate public policy. Sixteen years later, in Yearworth11 the right to destroy sperm specimens was challenged by six men who claimed they suffered mental harm as a result of the destruction of their property. The specimens had been stored by the Bristol Southmead fertility units as the men were to receive chemotherapy treatment that may have limited their fertility in the future. However, the samples were lost by the storage system and they perished. The court held that the semen could be classified as property pursuant to the

10 [No. B073747. Second Dist., Div. Seven. June 17, 1993]. 11 Yearworth and Others v North Bristol NHS Trust [2009] EWCA Civ 37.

statutory provisions in the Human Fertilization and Embryology Act 199012 and that the men had grounds for an action of bailment. This case perfectly demonstrates the problems with the work and skill exception which simply cannot continue to be significant criteria for the creation of ownership rights in human tissues13. The analysis in Yearworth will encourage the future advancement of civilization14 and has since helped the courts in Australia reach a fundamental decision in Bazley15. In Bazley, the deceased had his sperm stored and preserved as he was undergoing cancer treatment that may have damaged his fertility. The man later died and the question arose as to whether the clinic could continue to hold the sperm samples for later use by the deceased’s wife. Ms Bazley sought to have the semen preserved by the clinic as part of the property of the deceased’s estate which the wife was a beneficiary to. The court, drawing on Yearworth declared that the semen was capable of property as White J held: “The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death”16. While the decisions in Yearworth and Blazey have declared human tissue as capable of being property with ownership rights, both cases have failed to introduce a transparent test setting out the vital criteria required to satisfy recognition of property in separated biological materials17. 12 Jesse Wall, ‘The Legal Status of Body Parts: A Framework’ Oxford Journal of Legal Studies, Vol. 31, No. 4 (2011), p 788. 13 Muireann Quigley, ‘Property in Human Biomaterials— Separating Persons and Things?’ Oxford Journal of Legal Studies, Vol. 32, No. 4 (2012), p 666. 14 Jonathan Brown ‘Theft, Property Rights and the Human Body – A Scottish Perspective’ Journal of Medical law and Ethics 2014; Vol. 1, NR. 1, 43-59. 15 Bazley v Wesley Monash IVF Pty Ltd [2011] 2 QD R 207. 16 Ibid. at 33. (White J). 17 Jesse Wall, ‘The Legal Status of Body Parts: A Framework’ Oxford Journal of Legal Studies, Vol. 31, No. 4 (2011), p 788.

Moreover, these cases have accepted the growing capacity of modern science to preserve and separated biological products for artificial insemination. The introduction of a clear guide discussed above may be sufficient in other jurisdictions regarding the ownership of embryos; however, the issues of embryos and particularly nonimplanted embryos will continue to raise extremely complicated legal and ethical issues in Ireland18. This is of tremendous significance due to Article 40.3.3 of the Constitution which protects the life of the unborn. Moreover, due to the lack of sufficient case law outside Ireland and because laws on assisted human reproduction have not yet come into force in Ireland19 issues such as these will poise difficult questions regarding constitutional, contractual and property law. Potential Solutions to Mitigate the No Property Rule One could argue that the doctors in Moore had created something of greater benefit that was highly useful in the medical world. However, the rule has to work both ways. There is nothing to stop a doctor taking patients tissue by deception and creating new strands of diseases rather than cures. It is inconceivable that the law would not assist a person in those circumstances by stopping researchers from using a patient’s tissue and this alone should be enough to warrant reform in this area. It is clear that due to the no property principal no person has a greater right to stop another from using their tissues once they are removed from the body. Even with a routine blood test, a patient ultimately has no input over what a doctor does with that test. In more extreme cases such as Moore, a patient can be deceived into giving tissue samples and cannot

18 Roche v Roche & others [2009] IESC 82. 19 Children and Family Relationships Act 2015

stop one from using it as they see fit. Moreover, it is also increasingly complex for the law to define what truly informed consent is and this requires urgent clarification. A property approach is the logical step to take in order to prevent unethical situations from reoccurring while also meeting the demands of modern medical research. Such an approach would give a person the full range of legal solutions available under the law but it would also have the negative side effect of allowing one to sell organs and parts of the body. One of the most common objections to recognising body parts as property is that it would facilitate commodification of the human body. Yet, as Douglas points out, this could easily be prevented by restrictions on how such property can be used. In order to prevent exploitation and sale of human bodies, limited rights of use and exclusion in a person’s regenerative tissue should be granted20. The introduction of rights in these types of tissues cannot lead to the commodification of the body as all one can do with the right to use is to use your tissue yourself or allow someone else to use it with fully informed consent. In addition, the right to exclude would prevent others from using your tissue for a purpose you have not consented to. It can be argued that this could create barriers to medical and scientific research as it would be much more difficult for a doctor to do as they please with a patient’s tissue if they have vested rights in it. However, it is hard to imagine a greater barrier to medical research than people refusing to donate their tissue due to a lack of public confidence in the medical profession. The law and medical research need to simultaneously realise they must strike a balance as ultimately, if there are no donors there will be no medical research. Conclusion

20 The potential for exploitation in regenerative tissue is much less than it is for non regenerative tissue as the consequences of giving blood are dramatically different to giving a kidney.

The recent decisions in Yearworth and Blazey have accepted the fact that genetic material is capable for consideration as property. However, the courts have failed to introduce a clear test with regards to the vital requirements necessary to secure property rights in human biological materials. It can be argued that the traditional no property principle is outdated and can no longer be supported by contemporary case law. As Rohan Hardcastle stated legal uncertainty in this area is not only inhibiting medical research but also the ability of individuals to control biological materials separated from their bodies21. Furthermore, Ted Slavin demonstrates the potential correct and ethical procedures to be followed by medical practitioners in future in order for the body to be capable of self-possession without facilitating commodification22. To remedy the inconsistencies regarding the propertisation of human biological materials, the common law cannot continue to rely on the justification of seperability. In order for the law to prevent situations such as Moore and Greenburg23 reoccurring there is a need for a limited proprietary framework. Failure to clarify this will allow the law to continue viewing separated bodily tissues as property, but only to those who have sourced the materials, resulting in extremely unethical procedures. Patients and research participants will have to be extremely careful when taking part in tests or rely on an assumption that medical professionals are reasonable in respecting the autonomy of the human body and its products. Therefore, in order to protect society while also advancing medical research it is paramount that property rights in the human body be justified on the basis of wider political and moral theories.

21 Gibbons, Susan M C ‘Law and Human Body: Property Rights, Ownership and Control’ Medical Law Review Volume: 16, Issue: 2. 22 Self-possession with regards to regenerative tissue only as discussed above. 23 See Greenberg v. Miami Children’s Hosp. Research Inst, Inc, 264 F. Supp. 2d 1064, 2003....