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Property Rights in the Body

Chapter 7
Property Rights in the Body


In any legal system operating in a society which respects personal autonomy we would expect the law to allocate exclusive physical control over our own bodies and body parts to us.1


In the last chapter, an attempt was made to show that while property may have a spatial dimension, it is primarily about relationships. Also, the rights protected as property do not necessarily have absolute protection, nor are they necessarily protected for eternity. These four attributes are captured by the Underkuffler framework which was adopted as the model of property for the thesis put forward in this book.2


In applying property analysis to the subject of self-determination in health-care decision-making, there are two possible approaches. The more obvious one is to consider one’s body as one’s own property. There is considerable reluctance on the part of ethicists and the courts to regard the living human body, or parts of it, as property, primarily because of the fear of commodification.


An alternative approach is to regard the patient’s right to make decisions about their treatment as a proprietary right. This is a much less travelled road, if not a novel approach, which will be explored in this book.


The association of property discourse with commodification of the human body will be a stumbling block in any attempt to promote a property model in doctor–patient consultations. To dispose of this obstacle, as well as cover the spatial dimension of the Underkuffler framework, this chapter elucidates the issue of property rights in the human body and in body parts and particles.


Lacks, Moore and Property Rights in the Human Body


Henrietta Lacks was a poor, young black woman who died of cervical cancer in 1951 in a segregated ward for black patients at the Johns Hopkins Hospital, Baltimore, USA.3 In the course of her treatment a sample of her cervical cells was, without her consent, sent to a research laboratory that was trying to grow human cells in culture. The cells became the first human cells to be discovered to multiply outside the body. Fifty years later, her cells continue to live on as the HeLa cell line. HeLa cells have contributed to numerous biomedical discoveries and can be ordered from tissue culture supply catalogues;4 they have travelled the world and been shot into space (to determine whether human cells could survive zero gravity). They have been used to develop a vaccine for polio, in numerous other research studies (relating to cancer, AIDS, radiation and gene mapping) and to test human sensitivity to cosmetics and other products. The cells have given rise to a multibillion dollar industry, yet Lacks’ family was never compensated, and they were unable to look after her unmarked grave.


Today, it would generally be accepted that to obtain the tissue without her consent was unethical.5 The question arises as to whether she or her family are entitled to proprietary rights over the cell line. Her family did not test this in court, but someone else in a similar situation picked up the gauntlet.


John Moore had hairy cell leukaemia which necessitated removal of his spleen at the University of California Medical Centre, Los Angeles. Moore signed the customary consent form for splenectomy. He was not informed that his extirpated spleen was going to be used for research. His surgeon, Dr Golde, working with other colleagues, undertook research on Moore’s T-lymphocytes, resulting in the development of a cell line and the Regents of the University of California were granted a patent for the method of producing this cell line as well as the use of this method to produce lymphokines.6 During the period of the research, samples of blood, skin and bone marrow were taken from Moore. The Regents contracted with the Genetics Institute Inc. and Sandoz Pharmaceuticals Corporation to commercialise the research findings, the products of which were worth an estimated US$3 billion. In 1983, seven years after Moore’s diagnosis was made, Moore was asked to sign a consent form permitting use of his body products and transferring rights in the products to the Regents. He declined and subsequently issued proceedings for inter alia, breach of fiduciary duty and conversion. He lost the claim of conversion but won on appeal, the Court of Appeal holding by a majority decision that Moore had property rights in his body part.7 While acknowledging that there were relevant policy considerations in this regard, the court held that there was no reason to believe that this proprietary right would hinder medical research.8 On appeal to the Supreme Court of California, a majority reversed this decision.9 Moore was given leave to sue for failure to obtain consent and for breach of fiduciary duty, but not on the basis of the ‘property’ claim. One of the reasons given by the majority for taking this position was that granting Moore’s property claim would hinder biotechnological development:


In effect, what Moore is asking us to do is to impose a tort duty on scientists to investigate the consensual pedigree of each human cell sample used in research. To impose such a duty, which would affect medical research of importance to all of society, implicates policy concerns far removed from the traditional, two-party ownership disputes in which the law of conversion arose. Invoking a tort theory originally used to determine whether the loser or the finder of a horse had the better title, Moore claims ownership of the results of socially important medical research, including the genetic code for chemicals that regulate the functions of every human being’s immune system.10


Another reason was that Moore’s interest in his bodily integrity and privacy are protected by the requirement of informed consent, so there was no need to apply property analysis:


… one may earnestly wish to protect privacy and dignity without accepting the extremely problematic conclusion that interference with those interests amounts to a conversion of personal property. Nor is it necessary to force the round pegs of ‘privacy’ and ‘dignity’ into the square hole of ‘property’ in order to protect the patient, since the fiduciary-duty and informed-consent theories protect these interests directly by requiring full disclosure.11


A third reason was that the scope of property rights in the body were better addressed by statute (‘legislative resolution’12) than case law.


It is interesting to note that years before the Moore case, an American university regarded cell lines as its property. Leonard Hayflick, whose research was funded by the taxpayer, used the cells of an aborted foetus to create a commercially profitable cell line (W!-38).13 When he tried to sell the cell line, his university accused him of stealing public property and called in the police.


Whole communities have also suffered experiences similar to those of Lacks and Moore. An example is the case of the Tristan islanders who, on account of the extremely high prevalence of asthma in this remote South Atlantic island, were lured into providing blood samples to foreign researchers.14 Subsequently genes associated with asthma were identified and patented and the patent rights were sold for US$70 million. The islanders had no property rights to their genes. In a similar case, a gene which might protect against HIV was extracted from blood samples taken from indigenous people in the Solomon Islands and New Guinea under the pretence of testing for diabetes, and only public pressure in the US forced the researchers to withdraw the patent of a gene.15


Mrs Lacks’s forebears, as slaves, were regarded as the property of their masters. Slavery was abolished in 177216 but even in the twenty-first century the ‘ownership’ of human beings is widespread in practices such as baby-selling and sex slavery.17 The opprobrium associated with ancient and modern slavery, and with cases such as those of Lacks and Moore, has influenced the wider debate about property rights to the body and body parts. As Alexandra George put it, images of slavery, exploitation and the degradation of humanity have a ‘rhetorical force’ that is ‘at least partly responsible for driving the confused and inconsistent principles that govern this area of the law’.18


Self-ownership


While it is now established that no one can have property rights over another human, it remains contentious whether property rights can be claimed over one’s own body or its parts, in life or after death.19 Morgan asserts that ‘[t]he “property in his own person” is less a metaphysical statement declaring self-ownership, more a political statement denying ownership by another’.20


In activities such as prostitution and surrogacy, the body is used as if it were one’s property. It could be argued that men and women exercise property rights over their body and body parts when they part with their gametes in exchange for a sum of money, as happens in some surrogacy arrangements and gamete ‘donation’ programmes and in so-called ‘rent-a-womb’21 surrogacy arrangements. A socio-political activist even filed an application for a patent on herself.22


Kant deplored the notion of property in oneself:


Man cannot dispose over himself because he is not a thing; he is not his own property; to say that he is would be self-contradictory; for in so far as he is a person he is a subject in whom the ownership of things can be vested, and if he were his own property, he would be a thing over which he could have ownership. But a person cannot be property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property.23


It will be noted here that Kant saw property as a thing – a notion of property rejected in this thesis. Locke, who affirmed that a person should be free from possession by others, thought of property in terms of the product of one’s labour, and it is not surprising that his position differs from that of Kant:


Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labour of his body, and the work of his hand, we may say, are properly his.24


The term self-ownership is applied to the sovereignty that individuals have over their body, skills, talents and labour. Jon Christman, who asserts that ‘insofar as my body moves or acts, I should be the one who has the ultimate say over what it does and where it goes’,25 champions this sovereignty. He argues that there are two construals of this term:


One can be called Lockean and the other Hegelian, referring to the bodies of thought that these positions most closely resemble. The Lockean defence of self-ownership expresses the idea that self-ownership is necessary as a kind of protection, in particular against invasions by the state into the private and personal aspects of one’s life. The Hegelian view is that self-ownership is more than a mere negative barrier against intrusion, but rather a positive good that manifests a person’s extension of her personality and will into the world. Self-ownership, on this view, is an expression of the person’s embodiment in her own body and talents, and it is valuable because it is necessary for the self-expression that is constitutive of a truly human life.26


These two construals can be respectively described as ‘self-ownership as non-interference’ and ‘self-ownership as self-control’. It is noteworthy that these two construals are respectively similar to the narrow and broad conceptions of property and also to the narrow and broad conceptions of individualism discussed earlier in the book. Christman argues that rights to trade one’s talents are more difficult to justify on the basis of self-ownership when that principle is understood as the manifestation of a person’s interest in self-control than when viewed as non-interference.27 If self-determination in health care is simply about mere avoidance of unauthorised touch (battery) then the first construal will permit the application of property analysis to the protection of self-determination. Adopting, as has been done in this book, a definition of self-determination that is consistent with the ecology paradigm, the second construal (‘self-ownership as self-control’) enables application of property analysis, with Madison’s broad conception of property being operative. This construal underlies the statement that ‘[t]he body is more than a utilitarian object: it is also a social, ritual, and metaphorical entity, and the only thing many people can really call their own’.28


The language of self-ownership could have the advantage of establishing that, at least in this respect, all persons are equal irrespective of gender, race or social standing, but this advantage is outweighed by disadvantages. While the notion of self-determination adopted in Chapter 2 unites one’s values and aspirations with the physical self, forming one personality, the concept of self-ownership suggests a division between the physical body and the non-physical personality, with the latter claiming ownership of the former. This division also makes the body (the physical part of the person) an object of property; in other words, a thing. As discussed in Chapter 6, the notion of property as a thing is rejected in this thesis and the notion of property as defining relationships is preferred.


Dwelling on self-ownership would only help perpetuate and reinforce the perception of property as a thing, a perception which leads judges intuitively to link property in the body to commodification. Also, owning one’s self could be seen as one step towards owning another. The case for a property model advanced in this book is therefore based not on self-ownership discourse, but on the property-as-defining-relationships-with-others concept of property.


The Increasing Application of Property Analysis to Body Parts and Particles


Increasingly, property analysis is being applied to the body and (especially) body parts and particles.29 Attempts to exercise property rights have been extended to embryos, with divorcing couples seeking to exert claims on frozen embryos as if they were property.30


One driver for ascribing property to the body and body parts is the ascendancy of rights thinking (discussed in Chapter 2). If self-determination is a state in which individuals have control over material conditions which shape their character, then property, as seen in Chapter 6, offers a strong means of having and exercising control rights. Rights thinking, however, is arguably not the main driver for the increasing application of property analysis to body parts and particles. Although self-determination is an important enough principle to drive claims to property in the body or body parts, it is commercial interests in biotechnology that currently appear to be the principal driver.31


Biotechnology


With burgeoning biotechnology, the value of human tissue has increased astronomically and many more stories like that of Lacks may emerge. Some hospitals in the United States are forming partnerships with biotechnology companies to provide them with human tissue for research, treatment and drug development purposes.32 Such arrangements raise concerns not only about compensation for the donors but also about commodification of the body and body parts. Perhaps it is such concerns that underlie the desire of some celebrities to acquire intellectual property rights in their own DNA.33 Most importantly from a legal point of view, the increasing value of body parts raises questions about property rights to those parts. The patenting of genes and other biological materials derived from the human body essentially creates property rights in human material.34


Matthews sees this trend as part of a changing world:


… all the societal pressures which a century ago pointed away from lawfully possessing and using human tissue now point towards it. The non-property solutions of yesterday are inadequate to the task of today.35


Richardson and Turner point out the ‘paradoxical fictionalisation and reification’36 of the human body: the body is fictionalised by its fragmentation to genetic codes, but at the same time reified by becoming a commodity in capitalist exchange relationships. They state that:


Changes in contemporary biological sciences and their commercial application invite us to make a distinction between three levels of law and embodiment. In modern societies, law will in principle have to distinguish between:


1) rights to whole bodies (in practice therefore to persons)


2) rights to buy or to sell or to store parts of bodies (as in organ transplants)


3) rights over ‘particles’ of bodies (such as DNA codes, genetic material and material relevant to human reproduction, for example eggs and sperm), that is to phenomena below the whole organism.37


Munzer on the other hand does not see any advantage in distinguishing between body and body parts or particles, referring to this as the ‘fallacy of division’.38 If persons lack property rights in themselves it does not follow that they lack property rights in their parts and particles.


Posthumous Reproduction


The more acceptable posthumous reproduction becomes, the more likely it is that society will recognise property rights in gametes and embryos. For this reason, it is important to clarify the moral status of posthumous reproduction. In the UK, the direction in which the ship of public opinion is sailing was revealed by the widely publicised case of R v. Human Fertilization & Embryology Authority, ex parte Blood.39 Stephen and Diane Blood had been in a relationship for 13 years, the last four as a married couple. Stephen was pronounced clinically dead on 2 March 1995, four days after contracting meningitis. At Diane’s request, two samples of semen were retrieved from Stephen by electro-ejaculation while he was in a coma. These were cryopreserved at a second hospital, Diane Blood intending to use them to have her husband’s child in due course. Her intention was frustrated by the Human Fertilisation and Embryology Authority (HFEA) on the grounds that the retrieval, storage and use of the sperm were unlawful. The court accepted Diane Blood’s statement that she and her husband had decided to try for a baby, but had no difficulty in agreeing that the storage of the sperm contravened the consent provisions of the Human Fertilisation and Embryology Act 1990 – Stephen’s written consent had not been obtained – and was unlawful.


Given that the use of her husband’s sperm was unlawful in this jurisdiction, Diane Blood sought to have the sperm exported overseas where she could have treatment. For this to be possible, the HFEA would have had to make specific directions to the clinic holding the sperm. Section 24(4) of the 1990 Act grants HFEA the discretion to give general and specific ‘directions’ on the export of gametes. The HFEA declined to give the required specific directions, and Diane Blood sought judicial review of this decision.


The Court of Appeal accepted the argument that HFEA’s decision not to give specific directions allowing the export of the sperm infringed Mrs Blood’s rights under Articles 59 and 60 of the Treaty of Rome. These articles prohibit member states from imposing restrictions on rights to receive services, except where such a restriction is deemed necessary for sound reasons of public policy. The court held that HFEA’s decision in the Blood case was not founded on the public interest, and referred the case back to the authority for review. Subsequently the HFEA withdrew its objection, and Mrs Blood has since had two children by her husband posthumously. It can be said that Diane Blood thwarted the consent provisions of the 1990 Act by gaining approval to export a property.


Storage and Use of Human Tissue


The Nuffield Council proffered the consent model as the appropriate approach to the acquisition and supply of human tissue.40 Ignoring or rejecting notions of tissue as property, the Council called for changes in the manner of obtaining consent for the removal of human tissue during treatment.


While, however, consent is concerned primarily with the taking of tissue (as confirmed by the decision in Moore), property analysis addresses the taking as well as subsequent use and control of tissue. Grubb notes that English law provides significant protection to individuals’ self-determination – by recognising a right to bodily integrity – such that the taking of any tissue from a competent adult person would be unlawful without the consent of the source but points out that the law is, however, solely concerned with the ‘taking’ rather than the ‘use’ of extra-corporeal organs or tissue and, by contrast, property law would have something to say about subsequent use and control.41


The Council of Europe tried to extend consent into the realms of further use and control when it declared that:


When in the course of an intervention any part of the body is removed, it may be stored and used for a purpose other than that for which it was removed, only if this is done in conformity with appropriate information and consent procedures.42


In practice this is not easy. At the time the body part is removed, the donor may not be in the right frame of mind to look beyond the immediate purpose for which the part was removed – and this may vitiate any purported consent to future use. Further, some options for use of the tissue or organ may arise after it has been removed.


Beyleveld and Brownsword argue that the informed consent requirement of Article 22 quoted above presupposes that there is property in our own bodies; that ‘the consent strategy presupposes the very property thesis that it tries to avoid’: ‘once we are contemplating rights of [use and control], we are in the natural territory of property rights’.43 Their position is that if we do not accept that we have proprietary rights in our own bodies and body parts, then we do not accept that in every case we have the right to control the use of our own body parts once they have been removed.


The idea of continuing control through a property right was also expounded by Nwabueze,44 who applied this to cases involving body parts and particles used for research45 and organs donated for transplantation.


Although consent is important, the problems relating to the removal and use of human tissue cannot be resolved until proprietary rights are clarified.


This is further illustrated by the tangle the Nuffield Council got into when it tried to use the doctrine of abandonment to confer ownership of extirpated tissue on the hospital authority – the Council suggested that where tissue is removed during treatment, the tissue should be regarded as abandoned, a concept that applies to property.46


The Common Law Position


As acknowledged by Gage J, the common law position regarding property in the body or its parts is not firmly established.47 Alexandra George describes the legal position regarding control of the body and body parts as ‘a contradictory jumble of legal principles’.48 There is substantial literature on property in the corpse,49 but a detailed review of the subject is unnecessary for the purposes of this book, which is about the living person’s right to self-determination. Although it can be argued that the way the law treats the corpse gives an indication of how it will treat the living body, this is not necessarily so. Even in ordinary life the former is regarded differently from the latter. Take the case of a person who suffers a heart attack in a public facility, for example. If this person was taken to the hospital alive, the newspapers will report that ‘Mr [or Mrs] Smith was taken to hospital’. If the person died, it will be reported that ‘the body was taken to’ (or ‘deposited at’) the hospital – what was previously a person becomes a thing to be deposited somewhere. The focus here will therefore be primarily on the living body, with only a few references to case law concerning the non-living body or body parts where appropriate.


According to obiter dicta in Dobson v. North Tyneside Health Authority, the body of a living person cannot be property.50 Nevertheless, case law in English, American, Canadian and Australian jurisdictions has given human body parts and particles some of the attributes of ‘property’.51 In Yearworth v. North Bristol NHS Trust (see below), the Court of Appeal accepted the existence of property interests in parts or particles of the human body.52 Body parts such as hair,53 blood54 and urine55 have been regarded as property stolen from the person in possession, although it is not always certain whether it was the tissue itself or the container in which it was held that was treated as property. If it was the tissue rather than the container that was treated as property, then the courts are using separability as the criterion for defining property. As Radin said:


The idea of property in one’s body presents some interesting paradoxes. In some cases, bodily parts can become fungible commodities, just as other personal property can become fungible with a change in its relationship with the owner: Blood can be withdrawn and used in a transfusion; hair can be cut off and used by a wigmaker; organs can be transplanted. On the other hand, bodily parts may be too ‘personal’ to be property at all. We have an intuition that property necessarily refers to something in the outside world, separate from oneself. Though the general idea of property for personhood means that the boundary between person and thing cannot be a bright line, still the idea of property seems to require some perceptible boundary, at least insofar as property requires the notion of thing, and the notion of thing requires separation from self. This intuition makes it seem appropriate to call parts of the body property only after they have been removed from the system.56


In the case of R v. Kelly and Lindsay it was held that parts of a dead body may be ‘property’.57 Kelly, an artist, had conspired with Lindsay, a technician, to remove anatomy specimens from the Royal College of Surgeons in London. They were both convicted of theft and appealed on the grounds, inter alia, that under common law the specimens did not constitute ‘property’. In upholding their conviction, the Court of Appeal ruled that property lies in body parts that have acquired different attributes by virtue of the application of skill. Lord Rose speculated that, given the flexibility of the common law, property rights could be recognised in unaltered body parts in future cases.


The decision in Kelly mirrors that in the Australian High Court case of Doodeward v. Spence where it was held that a stillborn ‘monster’ that had been preserved with spirits for 40 years had become property.58 In this case, Griffiths CJ said 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 it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it …


… the common law does not stand still. It may be that if, on some future occasions, the question arises, the courts will hold that human body parts are capable of being property for the purposes of s4, even without the acquisition of different attributes, if they have

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