The Human Body as Property? Possession, Control and Commodification

The project will be looking at the legal treatment of separated body parts. Some commentators have argued that the law should recognise a right of ‘ownership’ or ongoing control in relation to excised human tissue. However, that view has not been accepted as a general legal principle. Until recently, the legal position was that people do not have any proprietary interests in their excised tissue. Recently, however, a limited exception was recognised in the English case of Jonathan Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37 and the Australian decision of Bazley v Wesley Monash IVF [2010] QSC 11. Taken together, Yearworth and Bazley evidence a shift towards a new approach to the status of human tissue, away from the aged ‘no property in a corpse’ rule and the ‘work and skill’ exception. However, given their limited application and highly specific fact situations, there is considerable scope for further analysis. In particular, the implications of expanding this approach to tissue more broadly requires examination as there are many potential problems that might arise with doing so.

This collaboration will involve an investigation of how the law in this area might develop and the longer-term consequences of adopting a particular conceptual model. The project focuses on the applicability of property principles, and encompasses an exploration of the meaning and content of property rights. The project also explores the wider legal and ethical rationales for, and objections to, conceiving of bodies and body parts as items property.

Particular areas of inquiry include organ donation and sale, storage and use of gametes, and research use of tissue, but the project ranges widely across the many and varied uses to which human body parts and tissues are put.