On 16 October 2014, the group met for the fourth time this semester. This time, we talked about ownership of bodies under the law, while they are alive and after they are alive, in whole or in parts. How does death of the body and it’s parts relate to whether they can be owned? How does the law relate persons and bodies and what does that say about death as a concept.
Voo, Teck Chuan and Soren Holm (2014) Organs as inheritable property? Journal of Medical Ethics 40:57-61
Sken, Loane (2014) The current approach of the courts. Journal of Medical Ethics 40:10-13.
VOO AND HOLM 2014 – Heritability of Organs
Organs are currently neither property, nor heritable. Voo and Holm present possibilities for them as both.
To what extent are self-ownership and proprietary ownership analogous?
Body exceptionalism argues that human bodies have a special dignity that differentiates them from mere things. [Cp. Kantian distinction between persons that must be treated as ends and things that may be treated solely as means.]
Penner argues for exceptionalism on the grounds that bodies are inseparable.
Proprietary rights need not be bundled. Rights to transfer, to services, and to disposal could be removed from property rights for organs. Options and conditional contracts could be employed.
Does anyone else have rights to your organs? Specifically, do your heirs have rights in such a way as you might diminish their interest in the estate?
Bodily inheritance is feasible, though if it were the default, it would require provisions to deal with the concept of equal shares. [Could organs be assigned measured value in a comparable way?]
Should individuals and inheritors have the right to deprive the public of the common good of available organs for transplant?
How do anti-waste and liberal property rights incentives align? Voo and Holm suggest they are less aligned now than in the past.
Economic and Moral “anti-waste” incentives may not be the same.
Extended Existence: Is there a continuity of relational, symbolic, or abstract existence such that the rights of the deceased might trump (or even compete with) the rights of the living?
[Note that Voo and Holm use perishability as an argument mitigating many of the challenges inherent in bodily inheritance, but technology is rapidly changing this.]
SKENE 2014 – Legal Precedents
Bodies are not property by precedent, but courts have ruled on proprietary issues related to parts of bodies, resulting in legal inconsistencies.
There has been a move toward parts of bodies as property, but not the property of their originator.
Williams v. Williams 1882
- v. Sharpe 1857 “no property in a body”
Sir Edwin Coke “nullis in bonus” (not goods)
Executors may claim possession for the sake of burial.
Doodeward v. Spence 1908 Preserved two-headed fetus demonstrates work in preservation, and is therefore property. “sweat/equity rule”
Judge Griffith held that, like a naturally deceased animal body, found in the woods, a human body could be converted to property after death.
- v. Kelly and Lindsay 1998
Stolen body parts from the college of surgeons. In this case, art had gone into preparation, rendering them property of the artificer.
Dobson v. North Tyneside Health Authority 1996 tissues become property of the ones intending to use it.
Venner v. State of Maryland 1976 “When a person does nothing and says nothing to indicate an intent to assert his right of ownership, possession or control of such material, the only rational inference is that he intends to abandon the material.”
Moore v The Regents of The University of California 1990 held that a man had no right to profits made from the use of his tissues harvested during research. They expressly stated the importance of not suppressing biotechnological innovation.
Tissue can be stolen and, therefore, must be property,
- v. Herbert 1961 cut hair is property and may be sold
- v. Welsh 1974 a man was convicted of stealing his own urine
- v. Rothery 1976 blood may be stolen
PQ v. Australian Red Cross Society and others 1992 blood products fall under consumer protection regulations.
Roche v. Douglas 2000
The court granted access to tissue of a deceased man in order to establish parentage. The access fell under rules about ‘property’ but the court explicitly said that the right of access did not entail other property rights.
We discussed a number of complex issues related to death, property, and identity. Several classes of object were considered as potential property.
Bodies of living persons (We were all unwilling for them to be transferable or alienable property, which would constitute slavery – someone else owning your body.)
Bodies of deceased persons (Some propriety rights seem appropriate for carrying out religious wishes in burial etc. and for public health in proper disposal.)
Organs of living persons (Again, we had real concerns about perverse incentives arising from transferable ownership, options, or futures, feeling they would, almost necessarily lead to abuse.)
Recovered organs of living persons (Kidney’s and livers may be removed from a living donor at the donor’s discretion. Having been removed we felt there was benefit to being able to donate them to another. Concerns arose over the possibility of abuse if they were given high monetary value. To what extent should an individual be allowed/encouraged to benefit from harming themselves?)
Recovered organs of deceased persons (organ transplantation)
Recovered tissues of living persons (Here we had the greatest range of opinion related to health effects, quality of life effects, fitness effects, and dignity effects on the originator [aka donor].)
A. Urine (used in medical and drug tests)
B. Feces (used to transplant microbiome in medical treatments)
E. Gametes (sperm and eggs)
H. Skin (arguably an organ transplant)
We found ourselves discussing several potential dividing lines.
Constituent v. Product
Hair, for example is arguably a product, rather than a constituent of the body. We normally remove hair, but the question arises of whether someone else has any proprietary rights to your hair before or after it has been removed.
Human bodies regularly produce more hair, blood, and sperm. They do not produce more (adult) teeth and eggs.
Removal the heart is inconsistent with continued life. Removal of a kidney is not, but it may decrease resistance to future infections. Do we want to potentially give incentives for people to be less healthy? Do we have a right to ask that they be more healthy?
Removal of eggs could potentially decrease the number (or health) of offspring a woman has.
We also noted how the legal questions highlighted distinctions between persons (who may have rights), bodies, and parts of bodies (which might be seen as property). Personal death in the law usually happens at a clear dividing line. Almost all rights cease immediately (though interests may be considered). Bodily death in the law continues to expand in duration as technologies arise that can maintain tissues, organs, and bodies indefinitely.