Why should the law recognise human bodies as property?

Shane Finn

The common law rule that there is ‘no property in a corpse’ predates the 20th century.[1] Due to the ideas of the time, corpses were viewed either as an earthly symbol of the deceased or a useful sample for dissection.[2]  This essay shall argue that such a policy is obsolete and a far better policy would be to allow body parts be classified as property in law.

Early cases demonstrate that the courts regarded the human body as something different to property considering its spiritual and cultural significance.  In R v Lynn a ‘resurrectionist’ was convicted of disinterring and taking away a body.[3]  This was different to the charge of larceny, as explained by Erle J in R v Sharpe:

‘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]

Australia relaxed this rule at the beginning of the 20th century.  In Doodeward v Spence the Australian High Court ruled on the status of the body of a two-headed stillborn baby preserved in a jar and exhibited as a curio.[5] Griffith CJ held that where a person has, by the lawful exercise of work and skill, so dealt with a human body or part of human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial.

This case has not proved itself as definitive in the common law world.  Gibson LJ alluded to it in Dobson v North Tyneside Health Authority.[6]  However, he held that placing a brain within a jar of paraffin during the course of an autopsy did not meet the requirements of the application of work and skill. This reasoning is questionable as, there seems to be no material difference between what was physically done to the brain in this case, and that done to the baby in Doodeward v Spence;  both were placed in a jar of preservative.  A second question arises when considering the case of R v Kelly.[7]  The appellant was an artist with access to the Royal College of Surgeons to make drawings of body parts, and removed several parts from the College without permission.  He argued that since there was no property in the human body, then the College could not use the Theft Act to claim that any property had been stolen.  Rose LJ affirmed the reasoning in Doodeward v Spence by stating that the lawful exercise of work and skill may allow body parts to become possessions where parts are used for teaching and dissection. However it was also acknowledged that the common law does not stand still and as such human body parts might be considered property for the purposes of the Theft Act without acquiring any new characteristics.[8]

These cases suggest that it is the purpose for which the body parts are to be used that determines whether or not they are property.  However, it is unclear how an autopsy is substantively different to a dissection.  While dissection is usually for educational instruction, and autopsies are for mostly establishing the cause of death, an intent-based system of determining whether bodies are to be treated as property seems superficial.  For example, if  a person wished to donate their body to science but fell victim to a murder,an autopsy would be undertaken and their body parts then preserved for research.  To an observer, there would be no clear distinction as to when the autopsy ends and the storage of organs begins; a pathologist wouldn’t put organs back in a corpse to then take them out again.  This superficial distinction between what body parts are and are not property is unsatisfactory.

Furthermore society’s attitudes towards the human body have undergone massive changes.  Lord Judge CJ explained in Yearworth v North Bristol NHS Trust that part of the reason why the body was not treated as property in times past was due to it being the temple of the Holy Ghost, and as such it was sacred and inviolate.[9] McGuinness and Brazier remind us that religious beliefs are still important for many people in determining what is to be done with their body parts.[10]  They may feel that treating their bodies as property is sacrilegious. In actual fact, a property approach may provide more protection to people in terms of what is done with their bodies after they die; testators could bequeath their bodies to those who they trust will carry out their wishes. It would also offer a higher level of protection to institutions in receipt of body parts as donations for research purposes.

As Goold and Quigley note, the current statutory regimes deal with human biomaterials only at the point of donation, but provide no guidance as to what rights each interested party has in the material afterwards.[11]  Judicial guidance from the United States draws an analogy with donated biomaterials and inter vivos gifts,[12] while the English case of Yearworth v North Bristol NHS Trust held that materials produced by one’s body can be considered as the property of that person if they were produced for medical use for that person.[13]  Goold and Quigley rightly argue that the issue with these cases is that they often attempt to find a just solution in the instant set of circumstances instead of attempting to down a workable precedent.[14]  The use of biomedical materials is extremely important in our modern world.  A property approach that sets out who holds what titles in relation to body parts provides greater protection for all parties through an increased level of clarity.[15]

The absence of such clarity as to who holds what rights is having an adverse effect on medical research.  In England, Campbell et al illustrate that while many medical researchers are in favour of the Human Tissue Act, the use of criminal sanctions for breaching the consent of those who donated material[16] has made some uneasy about innovation and experimentation.[17]

As well as the practical benefits,  clarity  would provide greater adherence to the rule of law discussed in the introduction to this essay.  A property approach is the  logical step to take in order to meet the demands of modern medical research.  That being said, not all have welcomed the idea.  One of the most common objections to recognising body parts as property is that it would open the door to their commodification.[18]  Yet, as Douglas points out, this could easily be countered by restrictions on how such property can be used.[19] However, the question must be raised; , why should there be any restrictions on the commercialisation of human body parts if people so wish to do so? Rippon argues that such a ban is justified; even when poor people are allowed to sell their non-essential organs while alive it does not make a substantive contribution towards their long-term betterment.[20]  The initial objection to this argument is that minimum-wage employment and unpaid internships may not yield a materialistic benefit to those that undertake them, yet they are allowed nonetheless.  Secondly, when the law allows for something to take place, it can also frame limitations in order to ensure that ethical practices are maintained.  Harris and Erin argue that a single buyer, such as the National Health Service, policed by statute would be a way in which people, if they so chose to, could commercially trade their organs in a market designed to prevent exploitation.[21]

In conclusion, the old arguments for refusing to recognise body parts as property do not deserve the same weight that they once did.  It is clear that, in light of scientific advancements, this legal approach is unfit for purpose, and may be impeding further medical advancements through leaving medical professionals unsure of their rights over their research materials.  Furthermore, a property approach can be reconciled with a view of the sacredness of the body that some hold due to the fact that it would give them ultimate control over their own bodies as full property-owners.  Finally, the incremental creep of the common law in dealing with this issue with the result that body parts are not property except when they are is unacceptable in terms of providing legal clarity.  A property approach resolves all of these issues and is the best course of action for the law to take.

[1]I Goold, J Herring, L Skene, and K Greasley, ‘Introduction’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene and Kate Greasley eds Hart 2014) 3.

[2] I Goold and M Quigley, ‘Human Biomaterials: The Case for a Property Approach’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene, and Kate Greasley eds Hart 2014) 233.

[3] R v Lynn 100 ER 395.

[4] Re Sharpe (1857) D & B 160.

[5] Doodeward v Spence [1908] 6 CLR 40.

[6] Dobson v North Tyneside Health Authority [1996] 4 All ER 474, 478.

[7] R v Kelly [1999] QB 621.

[8] R v Kelly (n 7) at 631.

[9] Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, 14.

[10] S McGuinness & M Brazier, ‘Respecting the Living Means Respecting the Dead Too’ (2008) 28 Oxford Journal of Legal Studies 297, 301-309.

[11] I Goold & M Quigley (n 2) 247.

[12] Washington University v Catalona 490 F 3d 667 (8th Cir 2007).

[13] Yearworth v North Bristol NHS Trust (n 9) at 20.

[14] I Goold & M Quigley (n 2) at 244.

[15] ibid at 261.

[16] Human Tissue Act 2004 (United Kingdom), s 5.

[17] AV Campbell et al, ‘Human Tissue Legislation: Listening to the Professionals’ (2008) 34 Journal of Medical Ethics 104, 107.

[18] Jonathan Herring, Medical Law and Ethics (5th edn, OUP 2014) 469.

[19]S Douglas, ‘Property Rights in Human Biological Materials’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene, and Kate Greasley eds Hart 2014) 106-107.

[20] S Rippon, ‘Imposing Options on People in Poverty: The Harm of a Live Donor Organ Market’ (2014) 40 Journal of Medical Ethics 145, 148.

[21] J Harris & C Erin, ‘An Ethically Defensible Market in Organs: A Single Buyer like the NHS is an Answer’ (2002) 325 British Medical Journal 114.

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