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Property in the human body?
The question of ownership of the human body presents difficult normative challenges for the law. In one sense, we own our bodies, but it is not always clear what such self-ownership means. It is not the same ownership which I enjoy, for example, with regards to my car or mobile phone. Yet, it is not entirely different either. Such subtle conceptual difficulties little troubled the law until recent times. A dead body, or a body part separated from a living body, was merely a lump of clay destined to rot and of no commercial value. But today we can transfuse blood, transplant organs, freeze sperm and eggs, and develop immortal cell lines from human tissue for the treatment of disease. Human biomaterials, as they are now referred to in the literature, are in demand and sometimes hugely valuable. How do we regulate such uses? This is a difficult question. The human body and its parts are not just like any other objects; they are unique in that they retain a link to the person who is their source. Most obviously, this link is genetic as every cell in the body contains a person’s complete genetic code. But, there is also the intuitive feeling a person has that this material belongs to them and is part of them in some way. They are, thus, naturally concerned with how such materials are used and exploited.
At common law, however, there is a rule that there is no property in the human body. This rule was based on a misreading of much earlier case law concerning graverobbing, but has become a well-established common law rule. In Moore v Regents of the University of California 793 P 2d 479 (Cal 1990), a very famous decision of the California Supreme Court from almost 30 years ago, the plaintiff’s spleen was excised during cancer treatment and subsequently, and without his consent, a very valuable cell line was developed from it. His claim to a share of the profits from the research was denied on the basis that a person has no property in their body. Fears that allowing such a claim would interfere with medical research loomed large in the judges’ minds in the case, but so did the reluctance to utilise property law, as it would inappropriately draw equivalence between the precious human body and every other object in the world that is owned and traded. This fear, that treating the human body as property, will lead to its devaluation is a prominent objection in the literature since Moore to recognising property in the human body.
The body, it is claimed, will become objectified and instrumentalised as a result: treated as a mere means to an end like any other piece of property, ignoring its intrinsic worth and link to the human person who inhabits it. Property, it is claimed, serves the values underpinning autonomy and the market that are atomistic, self-focused and competitive. These principles are at variance with the broader range of values that we should seek to promote when dealing with questions concerning the body, its parts and products. Thus, property rights would objectify the body as bounded and self-contained when its true nature is in fact relational and interdependent.
My recent article in the Northern Ireland Legal Quarterly contests these objections to the property paradigm as based on a misunderstanding of property’s true nature. Certainly, property as envisaged by Blackstone, ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the rights of any other individual in the universe’, could be characterised as serving individualistic values alone. But, as I discuss in this piece, property institutions are plural, and Blackstonian property is but one of a diversity of forms that it takes. Property rights are more commonly limited rights and limited not just by the rights of other property owners, but by non-property rights. In the limited forms in which property has been recognised in the body thus far, it is in such a limited form and certainly not Blackstonian and absolute in nature. Property can also be utilised to protect social and community interests through the utilisation of the many forms of trust that exist. Such regimes are currently being adopted in relation to protecting donors’ interests in tissue research, and there is scope to adapt such trusts to protect the interests that indigenous groups have in their shared genetic heritage.
A final objection to applying the property paradigm to the human body is that, by the very language of property and the market being applied to the human body, this rhetoric will have a detrimental effect upon important values and reduce the body to a fungible commodity whose only value is its exchange value on the market. Of course, language has the power to alter our perceptions, but the much-maligned layman or laywoman is often given too little credit in distinguishing between differing modes of valuation of objects which have both intrinsic and commercial worth. We all have items of property which we recognise have a value to us that is not reflected in their market value. There is no reason to think it would be any different if we recognise property rights in our biomaterials.