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Do we own our own bodies? An Interplay between the Human Body and Property Rights

If you were to take a survey asking the question do you absolutely own your body?
 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 Property.

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.

 However, the most important aspect of what these relations actually entail have been left undefined.
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 [1]

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[2](this is however not to say that a defined legal right to the human body exists).

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 human body.

To determine who owns a person's body we must understand the concept of owner[3], 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[4]:
  1. Exercise: to do whatever an individual pleases with it.
  2. Legal disposal: power to change ownership, to consume (basically to get rid of it).
  3. 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[5]
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.[6]

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[7] 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 that:
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 granted[8]

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[9] 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[10]. The widespread existence of sperm banks for the sale of these specific materials indicates that individuals can exercise proprietary rights over the human body[11].

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.[12]

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[13]. Based on findings of various cases and by studying the reasoning used to reach their conclusions of property 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[14] 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[15] 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[16] 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[17] 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 their legitimacy.

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:
  1. The individual is deceased: the original inhabitant of the body is no longer alive and his/her autonomy is no longer a factor.
  2. 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[18]. The rights and obligations associated with renting as opposed to ownership can be used much more accurately to illustrate the rights that a human possess over his/her body.

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 organs[19].

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.

  1. Rotherham Craig, Conceptions of Property in Common Law Discourse (1998)
  2. Alexandra George, Legal Approaches to Ownership of the Human Body (2001)
  3. Jesse Wall The Legal Status of Body Parts: A Framework 31 Oxford J. Legal Stud. (2011)
  4. Bowen LM Reconfigured bodies: The problem of ownership (2005).
  5. Honoré T. Ownership. Oxford essays on jurisprudence Oxford University Press (1961)
  6. George A. Is 'Property' necessary? On owning the human body and its parts (2004)
  7. Moore v. Regents of the Univ. of California, 249 Cal. Rptr 494 (Ct App. 1988)
  8. Howard Florey/Relaxin (1995) EPOR 451
  9. Charo RA. Body of research - ownership and use of human tissue New Engl J Med Sect (2006)
  10. Hecht v Superior Court (Kane) 20 Cal. Rptr 2d 275 (1993)
  11. Griggs L, The Ownership of Excised Body Parts: Does an Individual Have the Right to Sell? (1994)
  12. George A. Is 'property' necessary? On owning the human body and its parts J Leg Soc Phil 10(1) (2004)
  13. ibid
  14. A conventional definition for Sentient is Responsive to or conscious of sense impressions.
  15. R v Kelly & Anor [1999] 2 WLR 384
  16. 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).
  17. 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.
  18. 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)
  19. Kasman, Nicole Marie. "Do We Own Our Bodies: The Legality of Body Ownership" (2018).

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