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Who owns you?

By Adam Johnston - posted Monday, 18 October 2010


The Lockean “exception”

Despite apparent statutory prohibitions, there may still be a way to employ some property concepts to allow individuals to “own” their bodies. Alexandra George notes that John Locke asserts in his Two Treatises on Government that “every man has a property in his own person”. While labelling this the “Lockean exception” to the general prohibition against ownership of a living human organ or body, in an attempt to apply classical natural law theory she ends up with a concept that is comparable to the application of skill exception, as outlined in the case of Kelly (Regina v Kelly; Regina v Lindsay [Court of Appeal] [1999] QB 621, 2001).

Kelly and his co-accused Lindsay unsuccessfully sought to have their convictions for theft of body parts overturned. Kelly was an artist who had been given access to the anatomy laboratories of the Royal College of Surgeons to draw anatomical pictures. Lindsay, a technician, had assisted Kelly to remove limbs, skulls and other organs from the laboratories so that the latter could take casts of them and use these casts in his own artistic displays. This was done without the knowledge or consent of the College. The trial judge had directed the jury that the common law did not generally recognise proprietary qualities in the human body except where a person had applied their skills to change an organ or tissue sample in some way. Rose LJ also drew a policy distinction between individual artistic claims and the anatomical collections of museums and research laboratories; relying on the comments of Griffith CJ, in the human body a leading Australia authority, only the latter were recognised as holding samples for “valuable or interesting information or instruction”.

This does not leave much room for any concept of “self-ownership”. While it is argued by Locke that by applying his labour, a man can take things out of the state of nature and claim a proprietary right over the thing he has altered, this still leaves the question of the status of the unaltered human body. George concedes this by saying that for proprietary principles to apply, a third party’s labour is needed to make it “body part plus”.

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What could the “plus” component be? Rohan Hardcastle cites US authorities to demonstrate that people can lay claim to tissues, excrement and other parts of their bodies which may be removed by them or expelled by natural processes.

The key component is that the individual concerned makes an immediate claim upon the sample taken. In Venner v State of Maryland the police seized balloons filled with hashish found in Venner’s faeces. The Court found the seizure was legal and, noted that it was normal for people to abandon such materials. On this basis (see Rohan Hardcastle, Law and the Human Body: Property Rights, Ownership and Control, Hart Publishing, Oxford and Portland, Oregon, 2007):

when a person does nothing and says nothing to indicate an intent to assert his right of ownership, possession, or control over such material, the only rationale inference is that he intends to abandon the material.

This leaves open the possibility that people who consent to provide tissue samples, blood and other products could continue to asset limited ownership and control, by only handing samples over with caveats attached to their provision.

But how reasonable are such prohibitions, particularly if researchers go on to make millions of dollars out of a sample? In Moore v Regents of University of California a leukemia patient realised over several years that his physician had been profiting from the samples he provided by patenting them, or rather, the therapeutic chemicals that could be obtained from them. Mr Moore became concerned when his physician sent him documents asking him to hand over rights to his tissues. Initially, Mr Moore reluctantly agreed to do this, but later found that the University owned the Mo cell line; a cell-line cultured when Moore’s cancerous spleen was removed and the cells grown from it having a potential market value of $3 billion (Rebecca Skloot, "Taking the Least of You", New York Times Magazine, April 16, 2006).

Recent case law demonstrates a way to reconcile the questions of individual ownership, alongside the advancement of science and the placement of monetary values on tissues. In Yearworth v North Bristol NHS Trust several men sued the UK National Health Service Trust for negligence, over the failure to preserve their semen samples. These samples were provided prior to commencing treatment for cancer, given the likelihood of infertility as a result of therapy.

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The men alleged that the semen was their personal property, which had been destroyed by the failure to store it at the right temperature. Their Lordships made an early statement of principle that a live individual may neither be owned by another, nor can one “‘possess’ his body or any part of it”. However, as the judgment progressed this position became increasingly qualified. Firstly, individual autonomy and legal protection from assault and battery are acknowledged as caveats. Proceeding through a discussion of Coke’s Commentaries, while considering Doodeward and Moore, their Lordships sought to distinguish Kelly, on the basis that with the advance of science and medicine, they saw the “exercise of work or skill [exception as] not entirely logical”.

In coming to this position the judges said that “ownership” was a wide concept which included a range of claims over tangible and intangible types of property. In particular, they highlighted that ownership could involve “a right to use” without this necessarily being equivalent to a right to possess. Nonetheless, their Lordships cite academic authority to argue that possession was one of 11 criteria which could be applied to determine ownership of property. Therefore, the claimants in Yearworth did not have to possess their sperm in order to have a right to use it.

This reasoning intersects with the application of skill test, when the application of skill by an appropriately trained professional falls below the reasonably expected standard for that professional and, as a consequence, a party loses a right to use property. Their Lordships provide the example of a surgeon negligently damaging a finger he was supposed to reattach to an injured hand prior to microsurgery, escaping liability because work and skill had yet to be applied to the digit’s reattachment.

Their Lordships decided that this potential anomaly in the application of skill test left the common law in uncertainty. They proceed to qualify the ownership of tissue around a Human Tissue Act requiring professional medical intervention to guide the proper access and use of the material. They then asked whether the health service in Yearworth was bailee to the claimants’ semen samples? Considering legal authority, their Lordships conclude that the National Health Service was a gratuitous bailee which took possession of the semen samples, imposing:

[a] duty … to take such care of [the samples] as is reasonably to be expected of a person with such skill.

Conclusion

It is possible to have limited forms of ownership in your own body. However, these rights will exist only within a framework of research or medical treatment. Outside museums and hospitals though, people will generally only be able to retain bodies of the deceased for burial. Legislation continues to bar tissue samples or organs being provided for valuable consideration, but given the growing economic value of genes and other bodily substances, better acknowledging the role of research participants like Mr Moore is an issue both jurists and scientists need to address.

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About the Author

Adam Johnston is a solicitor, holding a Master of Laws from the University of New England, Armidale, and a Graduate Diploma from the Australian Institute of Company Directors.He is currently a PhD (Law) Student at Macquarie University researching the NDIS.

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