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Recognising Property Rights In One's Body And Its Parts

  1. 1. RECOGNISING PROPERTY RIGHTS IN ONE’S BODY AND ITS PARTS Benjamin Cope November 2011
  2. 2. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 1 of 20 RECOGNISING PROPERTY RIGHTS IN ONE’S BODY AND ITS PARTS Recognising property rights in the human body and its parts remains a controversial legal issue that is yet to be comprehensively dealt with. This paper will argue that legally recognising property rights in one’s body and its parts is needed in order to keep up with social attitudes and medical advancements. It will establish that property law is an appropriate system for dealing with the infinite medical and technological advancements in the human body that society will be faced with in the future. This paper will begin by briefly defining the concept of property and examining social attitudes and their development. The approach of the common law will then be analysed by discussing some relevant cases. Arguments opposing the recognition of property rights will be discussed followed by arguments in favour of the recognition of property rights. A brief introduction to legislation and reforms that relate to property law in the human body will be examined, and finally this paper will discuss a proposition for the implementation of new legislation. THE CONCEPT OF PROPERTY AND ITS DEVELOPMENT “Property is the institution by means of which all societies regulate access to material resources or things”.1 In the Aboriginal land rights case of Milirrpum v Nabalco,2 Blackburn J defined the legal meaning of property as: “…property in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to further qualification.”3 It is important to note that although Blackburn J implies that these elements must ‘generally’ exist, it is possible to establish a property interest with some of them !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 B J Edgeworth et al, Australian Property Law (8th ed, Australia, Butterworths,2008) 1.1 2 Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141 3 Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141, 171
  3. 3. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 2 of 20 missing. This definition was further affirmed in the High Court case of Yanner v Eaton.4 Gleeson CJ, Gaudron, Kirby and Hayne JJ construed that the term ‘property’: “…does not refer to a thing; it is a description of a legal relationship with a thing. The concept of ‘property’ may be elusive. Usually it is treated as a bundle of rights. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing… Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over thing and resources…”5 The concept of property therefore defines the legal relationship between persons in respect to things, though the subject matter and objects are constantly varied. It has been suggested that the ‘bundle of rights’ has a set of fundamental elements that must be present for the recognition of a property right to be established. Different combinations have been suggested as to what these core elements should be with the most common including the right to use or enjoy, the right to exclude others, and the right to alienate.6 Although not all of these rights are common to every form of property in all circumstances, not all of the rights from the ‘bundle of rights’ need to be present to establish a property interest. However, this does not necessarily equate to full and unfettered ownership.7 The terms ‘ownership’, which indicates complete control over a thing, and ‘possession’, which is evidence of a property interest, can be distinguished from each other,8 however both are recognised as an enforceable property right.9 Property law is both a legal and social institution, and thus it is important for consideration to be given in its historical, social, and economic context.10 Historically, the subject matter of property has changed. Persons such as slaves were once !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 Yanner v Eaton (1999) 201 CLR 351 5 Yanner v Eaton (1999) 201 CLR 351, 17 6 Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 652 7 Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position in Western Australia’ (2002) 4 The University of Notre Dame Australia Law Review 99 8 Yanner v Eaton (1999) 201 CLR 351, 85 9 Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position in Western Australia’ (2002) 4 The University of Notre Dame Australia Law Review 100 10 B J Edgeworth et al, Australian Property Law (8th ed, Australia, Butterworths,2008) 1.2
  4. 4. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 3 of 20 prohibited from owning property under the law,11 and England did not see a married woman able to hold property in her own name until 1935.12 Socially, the community’s influence has played a significant part in property law and its application to the human body, and shows the objects of property are also subject to change. Society has disapproved of the sale of one’s body and its parts for reasons such as that it is ‘immoral traffic, objectionable in itself and filled with possibilities of abuse, ranging from the exploitation of children…to encouragement to murder.’13 These attitudes placed a higher moral importance on the human body rather than diminishing it to the notion of nothing more than a mere object. Despite these, and many similar arguments, there is precedent showing the recognition of the human body as an object of property.14 Slavery, although now abolished in all Western democracies, did not disappear completely from England until the eighteenth century.15 Furthermore it still exists throughout many Eastern, African and South American societies in forms such as sale of women and children, sexual exploitation and forced labour.16 These kinds of property law principles have been applied to the human body with relative ease in the past and, though now illegal, continue in the present day. This acceptance of a property right in the human body, shows how easily the lines between what is morally right or wrong have been distorted to suit the view of society at the time. In more modern times, the development of new technology has forced courts and legislature to consider whether a human body and its parts should be treated as property.17 These new technologies have society concerned with controlling the potential uses of their body and its parts.18 This perception shows that whilst the human bodies capability of utilising its parts to cure disease and repair defective bodies is accepted by society,19 it is also expected that some safeguards exist to prevent possible exploitation. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11 Matthew J Lynch, Property in Human Gametic Material and the New Reproductive Technologies (1999) 6 JLM 348 at 349 12 Women’s International Centre, Women’s History in America (1994) http://www.wic.org/misc/history.htm 13 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 183 14 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 26 15 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 26-27 16 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 27 17 B J Edgeworth et al, Australian Property Law (8th ed, Australia, Butterworths,2008) 1.2 18 Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body parts and Tissue (2002) 2 Macquarie Law Journal 165, 167 19 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 14
  5. 5. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 4 of 20 Economically, one’s body and its parts are now considered to be valuable, in financial terms, as a result of medical and technological advancements. Due to the commercialisation of these materials, researchers, investors and donors can all be expected to claim rights of control over the human body and its materials.20 The processes involved in researching and developing new technologies through to their practical application can require huge sums of money.21 For example, the cost of cancer research in Australia in 2000-2001 was $378 million.22 The costs involved in kidney transplantation in Australia for an individual range from $65,000 to $75,000 in one lump sum with $11,000 for ongoing treatment per annum.23 Courts will usually look to both economic and noneconomic modes of valuation when determining property rights, as well as considering any policy issues. There are several forms that attempt to define the scope of property24 , however in regards to property rights in the human body and its parts, consideration should be given to its economic value due to increasing commercialisation. Many judiciaries endeavour to keep uniformity between the legal definition of property and its commercial meaning. The reason for this is the argument that ‘if commerce treats valuable and transferable assets as property, so should the courts’.25 THE COMMON LAW’S APPROACH As we have seen, the recognition of property rights in a person’s body or body products is a controversial issue, and is a subject that the judiciary is cautious with in its treatment and approach. There are several cases that touch on property law in relation to the human body. In the United States, Moore v Regents26 is one significant case that discusses at some !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 20 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 43 21 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 55 22 Cancer Council Australia, Facts and Figures (2011) http://www.cancer.org.au/Newsmedia/factsfigures.htm 23 Transplant Australia, The Benefits (2011) http://www.transplant.org.au/The-Benefits.html 24 Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 647: “…an insistence that rights fall into some recognised category (the ‘recognised category test’); the test in National Provincial Bank Ltd v Ainsworth (the ‘Ainsworth test’);54 a focus on the commercial treatment of a thing (the ‘commerce test’); a focus on the nature of the thing itself (for example, the ‘excludability test’); an assessment of the extent to which rights operate in rem (the ‘in rem test’); or minimal requirements as to which rights are recognised with respect to a thing (the ‘core bundle of rights test’)…” 25 Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 650 26 Moore v Regents of the University of California (1990) 51 Cal 3d 120
  6. 6. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 5 of 20 length the application of property law to regulate medical and scientific advancements in the human body. In 1976, after being diagnosed with hairy-cell leukaemia, John Moore began treatment at the Medical Centre of the University of California in Los Angeles. Dr David Golde, the attending doctor, recommended that Moore undergo a splenectomy in order to slow down the progress of his disease. Moore subsequently signed a written consent authorising the procedure and allowing the hospital to “dispose of any severed tissue or member by cremation”. Moore returned to the University of California Medical Centre several times thereafter at Dr Golde’s direction. Each visit saw Golde withdrawing additional samples of blood, blood serum, skin, bone marrow and sperm. In 1983 Moore was given a different consent form to sign, which gave any rights of ownership from potential cell lines, or other products derived from Moore’s tissue to the University of California. Moore refused to sign and sought the assistance of an attorney who discovered a patent. In 1979 Golde had established a cell line from Moore’s T-lymphocytes, and realising the commercial potential of the cell line and its derived products- estimated to be around three billion dollars- he planned to benefit financially by exploiting the cells and their exclusive access to them by virtue of the doctor-patient relationship between himself and Moore. In 1984 a patent was issued to the Regents, with Golde listed as one of the investors. Golde then negotiated commercial agreements for the development of the cell line and other products derived from it. Upon Moore discovering the commercial value of his spleen and other cells, he brought a cause of action in conversion for the use of his cells in medical research. The Court’s biggest concern in dealing with this conversion claim was the potential impact on research and development in pharmaceutical products if they found in favour of Moore27 . Researchers and pharmaceutical companies could be unwilling to use tissue from donors if there was a possibility of litigious actions brought against them because of the uncertainty of whether proper consent was given by the owner in light of possible commercial development28 . Per Arabian J, there are profound implications for !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 27 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 26 28 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 27
  7. 7. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 6 of 20 “…the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability…”29 For these reasons, Moore’s action was ultimately unsuccessful, with the majority finding that policy considerations outweighed a finding in favour of a liability in conversion. The possible repercussions on socially useful activities30 such as medical research were too great. It was further opined that moral, philosophical and religious values were too much at stake. The potential implications and effect on human dignity that could arise from enforcing a property interest in body tissue could not be comprehended31 . Dissenting judgments made by Broussard and Mosk JJ, were in favour of recognising property rights in one’s body and its parts, however their application turned more on the commercial aspects of the situation. “...if this science has become science for profit, then we fail to see any justification for excluding the patient from participation in those profits…”32 This statement made by Mosk J, conveys that a recognised property right was morally acceptable in order to value the contributions of the individual to the research. Broussard J also noted that the majority finding could not have anticipated, and did not suggest otherwise, that a removed body part could never become property33 , giving the proposition of a competing company stealing the cells in question from the University of California Medical Centre for their own benefit. He stated that it would be unquestionable that a cause of action for conversion could be brought against the thief under those circumstances. Within Australian jurisdictions, there have been a few significant cases that have dealt with the application of property law to the human body. As the following cases will demonstrate, the courts appear reluctant to recognise property rights in a human body or its parts unless the subject material possesses attributes that distinguish it from raw !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 29 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 149 30 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 143 31 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 149 32 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 175-6 33 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 153
  8. 8. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 7 of 20 biological materials. The High Court case of Doodeward v Spence34 involved a stillborn ‘two-headed baby’ preserved in a bottle filled with spirits. The attending doctor kept the preserved specimen and later sold it to the appellant. The appellant profited from putting the specimen on display until police seized it in an attempt to recover it for the plaintiff. The court found that the specimen was capable of being property. The case set the principle for allowing human material to be converted to property so long as ‘work and skill’ has been applied to it. Griffiths CJ held that that, “…when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that is has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it…”35 In New South Wales, the case of Pecar v National36 , the plaintiff sought access to the human tissue of the deceased in order to carry out DNA testing, to prove that he was the son of the deceased and entitled to claim under intestacy. The tissue was stored by a pathology business, and would only release the samples under the direction of a court order. The plaintiff relied on the Supreme Court Rules 1970 (NSW) 25 r 8, which authorised the court to direct persons not involved in the litigation to allow inspection, taking of samples, and making of observations in relation to any property. In considering whether the tissue was property, Bryson J referred to the principle of Doodeward v Spence37 finding that as the human tissue was fixed in paraffin, it was capable of being classified as property under the Supreme Court Rules 1970 (NSW) 25 r 8, as ‘work and skill’ had been applied. Similarly, Roche v Douglas38 in the Western Australian Supreme Court, applied the principle of Doodeward v Spence39 to brain tissue that was stored in paraffin wax. In this case, the plaintiff made an application under the Supreme Court Rules 1971 (WA), O 52, r 3(1) for an order enabling tests to be conducted on the tissue specimens !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 34 Doodeward v Spence (1908) 6 CLR 406 35 Doodeward v Spence (1908) 6 CLR 406, 414 36 Pecar v National Australia Trustees Ltd and Anor (unreported) NSW Supreme Court (no518 of 1996) (27 November 1996) 37 Doodeward v Spence (1908) 6 CLR 406 38 Roche v Douglas [2000] WASC 146 39 Doodeward v Spence (1908) 6 CLR 406
  9. 9. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 8 of 20 or DNA of a deceased person, which were held at a laboratory. This section allows the court to make orders on terms for- the taking of samples of property; the making of any observation of any property; the trying of any experiment on or with any property; or the observation of any process. In doing this, the court may authorise any person to enter upon or into any land or building in the possession of any party, or to do any other thing for the purpose of getting access to the property. The defendant argued that it was not within the court’s power to make such an order, as the tissue specimens were not property. The court dismissed this argument, ruling that it did possess the power to make the order allowing for DNA testing of the specimens as they were considered property of the laboratory for the purposes of the rule. A final case that requires consideration in the context of property rights to human tissue is the case of S v Minister for Health40 . The human tissue in this case was the sperm of the deceased, and the application for the extraction of it was made only a matter of hours after the deceased had died. The reason for this being that in an expert opinion, the removal of the material more than 24 to 36 hours after death would be of no use for any IVF procedure involving that material. The applicant testified that she had been married to the deceased for four years, and they had been in the process of undergoing IVF procedures in an attempt for her to conceive. At the date of the death of the deceased, 5 November 2008, they had an appointment on the 16 November 2008 with a medical practitioner for the removal of her eggs and his sperm, and the applicant was under no impression of any withdrawal of consent for the use of his sperm for the purpose of artificial insemination. In her submissions the applicant relied on the Supreme Court Rules 1971 (WA) O 52 r 3 and the Human Tissue and Transplant Act 1982 (WA) (HTT Act) sections 22 and 27. Specifically, the rule in O 52 r 3 reads: (1) The Court may for the purpose of enabling the proper determination of any cause or matter or of any question arising therein, make orders on terms for - (a) the taking of samples of any property; (b) the making of any observation of any property; (c) the trying of any experiment on or with any property; or !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 40 S v Minister for Health (WA) [2008] WASC 262
  10. 10. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 9 of 20 (d) the observation of any process. (2) An order under paragraph (1) may authorise any person to enter upon or into any land or building in the possession of any party, or to do any other thing for the purpose of getting access to the property. Simmonds J cited the case of Roche v Douglas41 , as authority for the proposition that the word ‘property’ in O 52 r 3 is capable of including tissue taken from the body of a person who subsequently died. He went on to state that he did not see fit to distinguish between taking tissue samples before or after death. In justifying his orders to allow the sperm to be removed and stored by a medical professional, Simmonds J had to first be satisfied that sections 22 and 27 of the HTT Act had been met. The former section requiring that a designated officer may authorise the removal of tissue from bodies in a hospital, the latter requiring the coroner’s consent to post- mortem in some cases. Neither section required the subject matter to be any person’s property thus it is implied that this has been established, particularly when read in conjunction with Supreme Court Rules 1971 (WA) O 52 r 3. Citing authorities from the Victorian jurisdiction42 , Simmonds J held that it was permissible to make orders for the removal and storage of the material in this instance, ‘…where the conditions in legislation like HTT Act s22 and, where applicable, s27 are met’43 . In his decision, he further stressed the order made that the sperm and any other material removed and stored was not to be used for any purpose, including the IVF procedure that the applicant sought to have performed, without an order of the court, at which the Minister for Health would have the opportunity to appear44 . In making the order for the removal and storage by a medical professional, Simmonds J did not indicate that the sperm of the deceased was any person’s property. Therefore this implies two possibilities, the first being that neither the applicant nor the medical professional hold property rights in the sperm. The second more likely possibility if based on precedent, would be the medical professional holds property rights in the sperm as ‘work and skill’ would have been applied in its removal and storage. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 41 Roche v Douglas [2000] WASC 146 42 AB v Attorney-General for the State of Victoria [2005] VSC 180; Y v Austin Health [2005] VSC 427 – The Victorian authorities distinguish between the making of orders for removal and storage of material, and the making of orders for the use of the material so removed and stored. 43 S v Minister for Health (WA) [2008] WASC 262, 18 44 S v Minister for Health (WA) [2008] WASC 262, 26
  11. 11. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 10 of 20 ARGUMENTS AGAINST RECOGNISING PROPERTY RIGHTS There are several arguments that argue against recognising property rights in one’s body. One such argument is that recognising property rights is unnecessary as laws such as battery, negligence, assault, and privacy, provide sufficient protection to the human body and its parts.45 Tort law protects autonomy Tort law protects an individual from having their body ‘invaded’. If a person’s body is ‘invaded’, or something is removed from it without the consent of the individual, or legal justification, this would make it a battery and also a criminal offence. Negligence laws require the full disclosure by the health professional of all information relevant to a medical procedure before consent is obtained from their patient. Therefore a person is protected from wrongful acquisition of body parts and tissue. Privacy laws are able to focus directly on the perceived harm and better deal with the possibilities arising from the wrongful use of body parts or tissue after their removal. The body as a commodity Another argument in allowing people to exercise property rights over their body and its parts is the potential for the human body to be regarded as a commodity.46 This may change societies attitude towards the human body and its parts, and furthermore may alter how society perceive and treat living people47 . One possibility could be a shift in the ‘opt-in’ attitude towards organ donation, with the greater community viewing organ donation as a duty of its citizens to make their parts available to those who need it48 . With commodification of the human body and its parts, comes a string of economic complications likely to cause considerable damage to society. As already discussed, the courts are likely to look at a good’s economic worth in determining whether !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 45 Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body parts and Tissue (2002) 2 Macquarie Law Journal 165, 167-168 46 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 23 47 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.21 48 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 24
  12. 12. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 11 of 20 property rights ought to be attached49 . The problem with this approach is that there is a clear difference between the human body and its parts when compared to other commodities. Any attempt to put a price on the human body, and its ability to cure disease and repair defective bodies, is morally reprehensible and undermines the very value that we place on it. The intrinsic value of the human body should not be confused with price50 . With the recognition of property rights in the human body, and its subsequent commodification, arises the ability of an individual to engage in trade and commerce. This raises several concerns for all parties involved in this kind of transaction. The selling of goods in Western Australia falls under the Sale of Goods Act 1895 (WA), with similar provisions throughout other jurisdictions. Accepting one’s body and its parts as property, could subsequently lead to it falling under ‘goods’ within the meaning of the Sale of Goods Act 1895 (WA). The problem appears that current legislation was not written with the sale of human body’s and their parts in mind, and so consequences are possible that were never contemplated. A contract of sale could potentially see disputes arising over the terms and conditions, the price, the performance of the contract, the rights of the buyer and seller, and remedies of the parties. It seems incomprehensible for courts to be ruling on a case of say perhaps, a faulty heart or liver, and what damages would be awarded to the suffering party. Quality of human parts Another argument against recognising property rights in one’s body and its parts, is the possibility of lesser quality materials being traded than those that are altruistically donated.51 This is founded by blood sales from alcoholics and drug addicts who do not fully inform others of any health defects and other personal information. These vulnerable people, and others such as the homeless and the poor, will be more likely to sell their body parts, thus creating a further separation of the classes. The possibility of buying body parts in order to repair or cure one’s health problems would inevitably become a comfort only afforded by the wealthy52 . !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 87 50 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 14 51 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 183 52 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 183
  13. 13. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 12 of 20 Self-destruction A final argument against the recognition of property rights in one’s body and its parts is the notion that no person should have the freedom of ‘self-destruction’53 . Potentially, recognising property rights could create a strong argument for suicide and euthanasia to be legalised. The bundle of rights that allows an individual to, amongst other things, use or enjoy, exclude, and alienate others from their property, in this case their body and its parts, could overrule current legislation54 that for the good of society, imposes limits upon the individual’s freedom to do with himself as he wishes.55 ARGUMENTS IN FAVOUR OF RECOGNISING PROPERTY RIGHTS As mentioned earlier, society appears mainly concerned with the potential uses of their body and its parts. Much like the arguments against property rights, there are also several arguments that favour the recognition of property rights in human bodies and their parts. Economic incentives In the United States case of Moore v Regents56 , the dissenting judgment made by Broussard J, held that there was no reason to deny recognising a patient’s economic interest in their own body and its parts57 . He gave consideration to the notion of enhancing trade in biological products, and how it could be promoted by recognition of a proprietary right in an individual58 . Thus the argument can be put forward that by allocating property rights, researchers and pharmaceutical companies involved in the development and production of new drugs, would be further encouraged by the strong investments resulting from the property rights in human body products59 . Furthermore, a recognised property right in one’s body and its parts would be likely to reduce a health professional to be influenced by any commercial gains that may result from their patients removed tissue. They would then not only have a duty to inform their patient of the benefits and dangers regarding any medical procedures, but would !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 14 54 Criminal Code Act 1902 (WA) s288 55 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 14 56 Moore v Regents of the University of California (1990) 51 Cal 3d 120 57 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 159 58 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 153 59 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 27
  14. 14. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 13 of 20 also need to inform the patient of any conflicting commercial interests. In possessing these property rights, a patient would then be able to dispose of their tissues after the treatment, without concern for the possibility of researchers and pharmaceutical companies profiting from the exploitation of their tissue. Inconsistent for some, but not all, to have property in body parts Another argument in favour of recognising property rights in one’s body and its parts is the idea that it is inconsistent to recognise property rights for some, such as pharmaceutical companies, but not for the individual.60 In his dissenting judgment Broussard J criticised the majority for failing to consider the patients interest in their own bodily materials when possible economic value could be obtained61 . Researchers and pharmaceutical companies trade human body materials amongst each other, sometimes with financial gains, and can receive patents for these materials as they would from any other tradeable property62 . It therefore stands to reason under this argument that an individual should receive the same benefits. Legislation can remedy potential problems Arguments mentioned earlier against the recognition of property rights in the human body and its parts included the ability of an individual to engage in trade and commerce, and that no person should have the freedom of ‘self destruction’. A simple solution to these arguments, that this paper will go into more detail later on, would be to enact legislation to deal with these issues. Though it may not be in the public interest to ban all forms of commercial transactions, some limitations could be imposed. In regards to the ‘self destruction’ argument, there are already specific offences in place that deal with incidents relating to suicide and euthanasia, and there would be no valid reason to allow the recognition of property rights in the human body and its parts to overrule these already established laws. As previously noted, the inability to perform particular activities in respect to a ‘thing’ does not indicate that you have no property right in it at all. The right to use or !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60 Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body parts and Tissue (2002) 2 Macquarie Law Journal 165, 173 61 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 159 62 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 28-29
  15. 15. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 14 of 20 enjoy, alienate or exclude others from a thing do not all need to be present. It is therefore arguable that whilst an individual would not have complete ‘ownership’, they could claim ‘possession’ in their body or body products as an enforceable, but limited, property right. Attaching limited rights to one’s own body and its parts creates a strong basis for recognising property rights, particularly when viewed alongside issues of commercialisation, and the impacts on research and development of new medical technologies. STATUTES AND REFORMS The recognition of property law in the human body or its parts appears to have been left to the combination of common law and existing legislation, such as the Human Tissue and Transplant Act 1982 (WA) (HTT Act) of Western Australia. The HTT Act administers the donation and transplantation of body products from both the living and deceased. Whilst this legislation could be said to imply some notion that property rights could exist in an individual, these rights would certainly be limited. The HTT Act makes it illegal to sell body products,63 but a donor is allowed to donate non- regenerative tissue if it is for the purpose of transplantation to another living person.64 This suggests that the donor, or senior next of kin, have the right to control the use of the tissue, and hypothetically could be able to give the body tissue away, or, if legislation did not make it illegal, be able to sell the body parts. The Australian Law Reform Commission has attempted to address the need for a ‘uniform approach to the regulation of samples and information…to avoid complexity, inconsistency and further fragmentation of privacy laws.65 In their inquiry, they discussed the advantages and disadvantages of recognising property rights in human tissue. Several submissions were made, including one approach precluding individuals from holding property rights whilst allowing hospitals and researchers to have these rights.66 Another suggested approach discussed the notion of a bundle of rights, allowing individuals to hold limited property rights, and to form a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 63 Human Tissue and Transplant Act 1982 (WA) s 29 64 Human Tissue and Transplant Act 1982 (WA) s9 65 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.1. 66 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.25.
  16. 16. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 15 of 20 kind of lease agreement with doctors and researchers,67 whilst also preventing commercial exploitation.68 However ultimately the inquiry considered that a property approach would be too difficult to adopt, as its drawbacks outweighed its benefits, and recommended that: “…proprietary rights in preserved samples, which are currently enjoyed by hospitals and others under the common law, should continue to be upheld on a case- by-case basis. Legislation should not be enacted to confer full proprietary rights in human genetic samples.”69 The approach of the common law, coupled with existing legislation, appears to give limited property rights in limited circumstances. Under existing law, ‘the organisation or person using the tissue must have lawful authority…’70 and ‘…that organisation must apply some work or skill to the preservation of the sample…’71 . Despite this, lack of any specific statutes that expressly recognises property rights in the human body or its parts, and the judiciary’s unwillingness to apply property rights to an individual appears to have left a need for new legislation to be considered. LEGISLATIVE REFORM RECOMMENDATIONS As mentioned previously, there have been several recommendations made to legislate in respect to property in the human body and its parts. In considering regulatory framework, property law principles must be carefully and consistently adapted in order to deal with the infinite possibilities that are likely to arise from advancing scientific and medical research in the future. It must be ensured that both ethical and moral standards remain at a high level. This paper proposes new legislation that is able to better define property rights in the human body and its parts. Consideration must be given to the many different aspects !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 67 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.28 68 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.29 69 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20-1 70 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 20.14. 71 Doodeward v Spence (1908) 6 CLR 406
  17. 17. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 16 of 20 that are involved in recognising property law rights in one’s body and its parts. They are as follows: The separate treatment of the bodies of the living and the deceased The treatment of a live person and their body is greatly different to that of a dead human body. There are already specific offences relating to a corpse that protect it from invasion, however with the recognition of property rights come circumstances that must be considered. Next of kin, or beneficiaries under a will could be granted the property rights of a human body and its parts. Possessing such authority over an object such as a human body has some issues for society that must be taken into consideration. The living human body is a completely different object. The legislation must consider the differences between adults, minors, mentally impaired persons, persons with other disabilities, and persons of varying maturity. Regenerative and non-regenerative tissue The distinction between regenerative and non-regenerative body parts must be taken into consideration. Different requirements must be analysed and applied to legislation, as there is a significant difference between blood, which is easily removed from the body, compared to an organ like the heart or liver which requires much more specialised care and skill. Collection, storage and disclosure of human tissue Continuing on from the classification of human tissue above, the collection, storage and disclosure of the tissue must be carefully considered. Persons must be authorised to carry out the procedure of collecting the information, and the facility where it is to be stored must also have authority to do so. Persons authorised to hold property rights As mentioned above, certain persons should be granted property rights in human body material. Two separate classes should be distinguished being the individual whose body or body parts are the subject matter, and other parties such as doctors, researchers and pharmaceutical companies.
  18. 18. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 17 of 20 In regards to the individual, it is recommended that property rights within their own body and its parts be granted, however these should be limited to rights of possession, rather than full ownership. The conditions placed on other parties would need to be stricter in order to ensure that legal, moral and ethical justifications are maintained. As mentioned previously, applying ‘work and skill’ to an object will, in the courts view, allow property rights to be recognised in the person who applied it, and any subsequent person’s who acquire that material legally would also hold such rights. This is one element of the proposed legislation that would need to be included. The second element of the proposed legislation to be applied to other parties in order for property rights to be recognised should be that they were lawfully authorised in obtaining the tissue. Informed consent acquired from the donor is one such option. Authority to remove the tissue could also range from court orders, criminal investigations and paternity testing. Offences and damages Specific offences relating to property in the human body would need to be formulated that address more specifically offences relating to fraud, deception and commerce in regards to one’s body and its parts. With regards to fraud and deception, we previously discussed informed consent and lawful authority for the removal of body parts. In the event that such materials are obtained illegally, legislation would be required to define the crime committed and the appropriate punishment. Awarding of damages would likely be a difficult task to define. Specific performance would be an unlikely remedy, as would the conversion of human tissue returned to its donor. In regards to commerce in the human body, it is recommended that an individual has no commercial right in their own body or it’s parts. They could perhaps be reimbursed for any expenses that they reasonably incur in donating any of their body tissue. Other parties that are commercially involved in human bodies and their parts should be able to continue in this practice, so long as they obtain the materials lawfully. This list is not exhaustive, and there are many factors, such as existing legislation and concerns of society, that must be taken into consideration when introducing any new legislation of this kind.
  19. 19. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 18 of 20 CONCLUSION It seems that the arguments against recognising property rights in one’s body and its parts, are outweighed by the arguments in favour of recognising such rights. The concept of property and the approach of the common law show that the human body is capable of being classed as property. Similarly to the case of Moore v Regents, Australian courts are willing to allow a body or body product to be classed as property, however they are yet to recognise such rights in an individual. Slow developments in the law could see situations dealt with inconsistently, and whilst common law is usually quicker to deal with new and unique situations, an issue such as property rights in the human body is a topic that needs lengthy and thorough debate and seems best left to legislators. Tort law protecting autonomy of the individual, the possibilities of the human body and its parts being treated as another commodity on the market, and lesser quality human parts available for research and transplantation, all have some merit to them. However, the negative impact on research and development of new technologies in the medical sphere, the inconsistency with which the common law treats the individual compared to doctors, researchers and pharmaceutical companies, and the ability of new legislation to overcome potential ethical, moral and legal problems, seems to leave behind any argument against recognising property rights in one’s body and its parts. Property law is the most appropriate system to deal with the infinite medical and technological advancements in the human body that society will be faced with in the future.
  20. 20. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 19 of 20 BIBLIOGRAPHY ARTICLES/BOOKS/REPORTS Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) B J Edgeworth et al, Australian Property Law (8th ed, Australia, Butterworths,2008) Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position in Western Australia’ (2002) 4 The University of Notre Dame Australia Law Review 99 E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington, D.C., Georgetown University Press, 1996) 43 Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body parts and Tissue (2002) 2 Macquarie Law Journal 165, 167 Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30 Sydney Law Review 652 Matthew J Lynch, Property in Human Gametic Material and the New Reproductive Technologies (1999) 6 JLM 348 at 349 Russell Scott, The Body as Property (New York, The Viking Press, 1981) 183 CASES AB v Attorney-General for the State of Victoria [2005] VSC 180 Doodeward v Spence (1908) 6 CLR 406 Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141 Moore v Regents of the University of California (1990) 51 Cal 3d 120 Pecar v National Australia Trustees Ltd and Anor (unreported) NSW Supreme Court (no518 of 1996) (27 November 1996) Roche v Douglas [2000] WASC 146 S v Minister for Health (WA) [2008] WASC 262 Y v Austin Health [2005] VSC 427 Yanner v Eaton (1999) 201 CLR 351
  21. 21. Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 20 of 20 LEGISLATION Criminal Code Act 1902 (WA) Human Tissue and Transplant Act 1982 (WA) s 29 Sale of Goods Act 1895 (WA) Supreme Court Rules 1970 (NSW) Supreme Court Rules 1971 (WA) OTHER SOURCES Cancer Council Australia, Facts and Figures (2011) http://www.cancer.org.au/Newsmedia/factsfigures.htm Transplant Australia, The Benefits (2011) http://www.transplant.org.au/The- Benefits.html Women’s International Centre, Women’s History in America (1994) http://www.wic.org/misc/history.htm

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