If you were to take a survey asking the question do you absolutely own your
the instant response of a disproportionate majority which answers the
question will be a YES. Although given certain circumstances and conditions the
same people may change their views.
In deciding whether a person should possess control of their own body or that of
another, the question that needs to be addressed is whether the body is the
property of the person who seeks to gain control over it. Any approach of
applying property rights to humans can never be fruitful and will always be
subject to flaws and criticism till the time the notion of Property is not
given an exact definition.
Leaving this generic term undefined in a particular
contextual setting opens the doors to a myriad of possibilities and
interpretations that may be adopted by Courts and Judges allowing them to
construct outcomes that are optimal for the matter at hand depending on various
social constructs and the everchanging needs of society. Over the course of
history legislators and Judges have tried to indicate a general relation between
the body and the person they deem as the owner of that object by using the word
This possibility of various interpretations stems from the fact that property
is viewed to describe the multitude of relations between an object
and its owner rather than the material/tangible object in itself.
most important aspect of what these relations actually entail have been left
As illustrated by Craig Rotherham:
Property cannot be meaningfully conceived of as some universal and immutable
concept, but only in terms of historically contingent conceptions that are more
or less prevalent in a particular legal culture at a specific point in time 
Two questions need to be answered to determine the relation between the body and
property rights, the first being; Are any property rights ascribed by law to
human bodies and their parts? In view of history, the most logical conclusion
would be that at least at some formal legal level property does exist in the
human body(this is however not to say that a defined legal right to the human
The second question deals with the time at which such rights arise
and take legal form. The simplest answer would be that rights only come into
existence when they become enforceable. Thus, by combining the situations where
property rights in the human body become enforceable (as well as where they do
not) and by studying the subsequent practical effects of this enforcement it
becomes possible to refine the definition of property within the context of the
To determine who owns a person's body we must understand the concept of
owner, the one being used here is a legal concept, it implies the entity
that has the capacity to claim property rights in another.
Ownership of an object comes with 3 main rights and/or obligations that are
granted to the individual:
- Exercise: to do whatever an individual pleases with it.
- Legal disposal: power to change ownership, to consume (basically to get
rid of it).
- Obligation: having responsibility that is associated with owning a
specific type of object.
The first two are subject to certain limitations, for example: one could use
alcohol to drink, wash cars, gargle, however it cannot be served to a person
below the legal drinking age i.e. as long as the exercise is not considered to
be illegal in the eyes of law.
When the legislature or courts think that an interest should be alienable or
transmittable, they reify it and say that it can be owned
In the present-day Modern society, we have seen the emergence of a vast number
of entities capable of transfer between individuals. Instead of creating a new
set of regulations for each of these entities separately, they are absorbed and
treated similarly under the institution of property.
However, when it comes to the issue of human bodies, it is not feasible to treat
them in a similar fashion as other commodities and entities. Broadly speaking
there are mainly three principles that have developed over the years concerning
the ownership of a human body which have been used in the court of
law. First the general principle that there is no question of property rights
arising when the subject is the human body (No property rule). Second there
exists an idea that an abandoned body or a derivative part of the body
(abandoned or otherwise) may turn into the property of the person who uses or
mixes his labour with that body or body part, this is seen with the Lockean
Theory of Intellectual Property (Lockean Exception).
The Third contemplates the possibility of a person possessing property rights
over his or her own body in order to extenuate or increase the individual human
autonomy of the person.
Moore v. Regents of the Univ. of California
serves as an ideal case for
analysing the major issues and legal ramifications that could arise from
recognizing property rights in the human body the facts of the case revolve
around the non-consensual use of the plaintiff's cells to create pharmaceutical
products that possessed vast commercial value. The legal question addressed in
the case was whether the plaintiff held personal property rights in the tissue
or substances of his body and whether the defendants breached those rights when
they used the same for commercial profit.
In the Court of Appeal, it was concluded that the plaintiff definitely enjoyed
an unrestricted right to use, enjoy and dispose of his spleen and, thus, held
property rights in his body. The California Supreme Court however reversed the
decision allowing the surgeon who developed the products to hold a proprietary
interest in them while denying Moore ownership rights over his own cells due to
the fear of inhibiting the advancements in the health-care sector.
A similar finding was reached in the case of Howard Florey/Relaxin holding
Patents covering DNA encoding of H2 Relaxin or of any humans genes did not
confer on their proprietors any rights whatsoever to human beings. The person
from whom the gene was extracted is free to live their life as they wish and has
exactly the same rights of self-determination as before the patent was
This follows that a derivative once removed from the body having no future role
to play in the functioning of the body is capable of being patented. These cases
have made the distinction between having ownership/property rights in entire
bodies and the concept of having proprietary rights over biological material or
particles that may be derived from the human body and used for the benefit of
society by means of research and scientific exploration. Therefore, it is the
product thus created (by labour) over which rights are being granted as opposed
to rights over the human body.
The above-mentioned cases along with others have followed the First and
Second principles, namely the No-property rule and the Lockean Exception to
arrive at their respective decisions. The Courts ruled that claims may be made
on the premise of breach of fiduciary duty (in cases of non-consensual use)
however they cannot be made on the merits of Property rights.
In cases emanating from the use of the Third Principle Courts have allowed
individuals to possess property rights over certain body parts such as sperm,
blood, hair, urine, bone marrow etc. The Courts have reasoned that to the extent
to which an individual possesses the decision-making capacity relating to the
use of their biological material they do in fact have a property interest in
their biological material. The widespread existence of sperm banks for the
sale of these specific materials indicates that individuals can exercise
proprietary rights over the human body.
However, the general criticism following the Third Principle is very closely
related to the age-old problem of what came first - the chicken or the egg. It
seems that the widespread existence of such banks among other pre-existing
conditions was the driving force behind the development of this principle. It is
unlikely that ownership over such materials would be accorded had the principles
come first because ownership of the body is not propagated within the First and
Second principle and even the Third does not seek to cover the entire body.
But where do we draw the line between the parts of the body that can be removed
or extracted from a human body without having any adverse future repercussions
and those which have an inherent and lasting link to the body to which they
belong? This is a question, the answer to which is impossible to generalize and
therefore no precedent can be established, it must be delved into only on a case
to case basis keeping in mind all surrounding facts and circumstances.
Cases pertaining to a dead body must be distinguished from that of a living one
as the law treats them both separately. Legislation and judicial precedents
indicate an aversion to opening a situation that envisages the possibility of
having property in cases of living human bodies. Based on findings of
various cases and by studying the reasoning used to reach their conclusions of
or not property
, it seems as though Courts have used an
additional conceptual understanding to arrive at their decisions.
This is the concept of an individual being sentient and possessing the
capability to make autonomous decisions regarding actions and behaviour. It
might be said that these capabilities are a result of the complex intangibly
embodied construct that is the mind, rather than merely that of the body. A dead
body loses these characteristics by virtue of its deceased state and thereby
becomes an applicant for certain kinds of property rights. To illustrate, the
case of R v Kelly may be used, the facts of which are as follows:
Kelly (an artist) acquired permission to draw specimens held by the Royal
College of Surgeons, he however removed various body parts from the specimens
over the course of a number of months. He used those parts to make casts which
were display at an art exhibition. After being convicted of theft he raised the
contention that since the body parts did not constitute property
', it was
fallacious to charge him with theft. The court held:
Parts of a corpse are capable of being property, if they have acquired different
attributes by virtue of the application of skill, such as dissection or
preservation techniques, for exhibition or teaching purposes
Several cases pertaining to the rights of next of kin in relation to the dead
body of a relative have been heard by Courts all over the world, such cases
have led to the creation of the concept referred to as quasi-property rights in
a dead body. These rights are however limited to the next of kin and only to the
extent of the right of possession which the kin require for the proper disposal
of the dead body.
With advancements in technology that allow for the transfer of body part from
one individual to another a growing trend of organ donation has been observed. A
common legislative approach that has been adopted by various nations to combat
problems associated with transfer of organs is that a living person has the
right to choose how their body parts will be treated posthumously (as a general
rule most organ donations can only be completed after death although there are
exceptions such as in the case of kidneys), however financial incentivization to
sway such decisions is generally prohibited.
If humans had complete ownership of their bodies, then the practice of selling
your body via prostitution, ending your life via euthanasia or receiving
renumeration for donation of organs should have been allowed under the Legal
disposal right. Following a similar line of thought even the use of drugs,
consumption of poisonous substances or jumping of a building should not present
problems under the Exercise right. These rights are an undeniable and
unalienable aspect of Ownership.
Such practices are however usually condemned/prohibited and carry criminal
repercussions for those involved in countries all over the world. It is the
social norm of Paternalism from which various legal structures have derived
laws regarding the above-mentioned practices. Decisions to implement them were
based on moral, sociological, ethical considerations and certain universally
accepted principles. These laws appear to be accepted in one form or another in
almost all Nations and it is not within the scope of this paper to comment on
Based on the above discussions it can thus be concluded that humans do
not legally possess absolute or complete ownership over their whole bodies. The
law however seems to recognise two situations where the property rights may
exist in a human body:
- The individual is deceased: the original inhabitant of the body is no
longer alive and his/her autonomy is no longer a factor.
- The parts of the body are either detachable or are capable of
regeneration and do not appear to be intrinsically linked to the survival
and autonomy of an individual. Their removal does not limit the
decision-making capacity of the original inhabitant of the body.
The problems and dilemma related to ownership and property rights in terms of
human bodies seems to originate from the misplaced conception that humans are
masters and hold complete dominion over their bodies. A way forward seems to be
the approach adopted by countries such as Spain, Portugal, and Austria. They
operate on the idea that individuals are merely renting the bodies for as long
as they inhabit them. This idea is implemented by using the policy of presumed
consent, so that after death the organs and parts of an individuals would
automatically become available for donation or scientific research unless the
person indicates a contrary course of action before their death. The rights
and obligations associated with renting as opposed to ownership
be used much more accurately to illustrate the rights that a human possess over
This conception opens the doors for increased productivity in scientific
research as some organs continue to function as if alive for a short period of
time even after an individual has passed away.
Governmental programmes may be built around this premise whereby a dead body
becomes the charge of the State and thus can be used to its maximum capacity for
the benefit of those still living. If it is accepted that people are not the
owners of their bodies and by extension the individual and family have minimal
to no ownership of the body after death this would allow for the enforcement of
proper and respectful treatment of cadavers.
Such an arrangement would also greatly reduce the operation of the black market
concerned with human organs and increase the survival rates of patients in
urgent need of organ transplantation. Statistics indicate that even though there
seems to be active support for organ donation, a large portion of society (or
their next of kin) nevertheless take the decision of not donating their
It can be seen from Court rulings and organ donation policies that Countries
have started to lean towards the non-ownership of human bodies. It remains to be
made final and formal by formulating and implementing legislation with the view
of creating a clear distinction between the exact rights that a human does or
does not possess associated with his/her body.
- Rotherham Craig, Conceptions of Property in Common Law Discourse
- Alexandra George, Legal Approaches to Ownership of the Human Body
- Jesse Wall The Legal Status of Body Parts: A Framework 31 Oxford J.
Legal Stud. (2011)
- Bowen LM Reconfigured bodies: The problem of ownership (2005).
- Honoré T. Ownership. Oxford essays on jurisprudence Oxford University
- George A. Is 'Property' necessary? On owning the human body and its
- Moore v. Regents of the Univ. of California, 249 Cal. Rptr 494 (Ct App.
- Howard Florey/Relaxin (1995) EPOR 451
- Charo RA. Body of research - ownership and use of human tissue New
Engl J Med Sect (2006)
- Hecht v Superior Court (Kane) 20 Cal. Rptr 2d 275 (1993)
- Griggs L, The Ownership of Excised Body Parts: Does an Individual Have
the Right to Sell? (1994)
- George A. Is 'property' necessary? On owning the human body and its
parts J Leg Soc Phil 10(1) (2004)
- A conventional definition for Sentient is Responsive to or conscious
of sense impressions.
- R v Kelly & Anor  2 WLR 384
- O'Donnell v. Slack, 55 P. 906 (Cal. 1899), Williams v. Williams (1882),
20 Ch.D., Pierce v. Proprietors of Swan Point Cemetery (R.I. Sup. Ct 1872).
- The desire to prevent people from harming themselves, it is usually seen
as a duty of the State to protect its population from any sort of harm, even
if the perpetrator and victim are one and the same.
- Verheijde JL, Rady MY, McGregor JL, Freiderich-Murray.C Enforcement of
presumed consent policy and willingness to donate organs as identified in
the European union survey: The role of legislation in reinforcing ideology
in pluralistic societies (2009)
- Kasman, Nicole Marie. "Do We Own Our Bodies: The Legality of Body