VOL: 97, ISSUE: 06, PAGE NO: 32
Sue Woodcock, MA (medical ethics and law), BSc, RGN, is clinical development sister and renal nurse, University College London Hospitals NHS Trust
For thousands of years the human body has been considered inviolable (Titmuss, 1997). As a symbol it reflects the society in which it exists, echoing its institutions and ideologies (Gold, 1996).
But the boundary between what is ‘me’ and what is ‘outside’ me is not clearly defined (Gold, 1996), particularly when internal organs, tissues and reproductive materials can be easily separated from the body and given to another or offered for research and experimentation.
People have powerful feelings of ownership over such tissues, as the parents involved in the Alder Hey and Bristol Royal Infirmary child organ scandals have shown. This idea of self-ownership promotes the concept that individuals have a collection of rights that enable them to determine what is done with their bodies (Kennedy and Grubb, 1994).
Although the law is effective in regulating and maintaining the integrity of the body when it comes to parts being removed in the sphere of medicine, it does not regulate the use or control of them once they have been taken. This suggests that we do not have an absolute right to do whatever we will with our bodies (Grubb, 1998).
To evaluate how English legislation and case law governs the human body and its constituent parts with regard to the use and control of parts once they have been removed, we must go back to the fundamental principles that guide property law.
According to Grubb (1998), the rules of private property operate to distribute in society those resources that are valuable and for which there is greater demand than supply. Grubb explains that ‘property’ is used to describe the relationship between a thing and an individual, and that this generates a range of legal rules that govern that relationship, in particular the person’s right to use the thing, exclusively control it and dispose of it.
Several statutes give each person power over his or her body or body parts in a way that covertly suggests the notion of property. These include: The Human Tissue Act, The Anatomy Act, The National Health Service Act, The Human Organ Transplants Act and The Human Fertilisation and Embryology Act.
The statutes appear to focus mainly on the exclusionary control element of property law, that is the taking of human tissue and parts, rather than their use (user entitlement) and control (dispositional liberty) once removed. There is one exception: dispositional liberty is a priority in The Human Fertilisation and Embryology Act.
It could be argued that this general reluctance to regard the body as property (Dworkin and Kennedy, 1993) is founded on historical respect for the body (Nuffield Council on Bioethics, 1995). This, in turn, implies that the body should not be used at will or abused and suggests that property rights may encourage the commercialisation of the body, turning it into a commodity.
Common law, which is derived from custom and legal precedent rather than statutes, is also not clear on how the status of the body and its parts should be regulated. Historically, its main concern was lost limbs and digits, and compensating for such losses, rather than organs and tissues. It also considered any breaking of the surface of the skin to be a danger to life so a wound might constitute a maim (Kennedy, 1998).
More recently, the law has recognised that regenerative body materials, such as hair (R v Herbert, 1961), blood (R v Rothery, 1976) and urine (R v Welsh, 1974), can be the subject of property rights and are capable of being stolen.
Although there are glimmerings of a notion of the body as property in these cases, the trend has been tempered by the presence of the ‘no property rule’. This appears to date back to 1644 when Sir Edward Coke proclaimed that a cadaver was nullis in bonis, or that it could not be considered goods. However, he seems to have misinterpreted a number of sources to reach the conclusion that there is ‘no property’ in a corpse (Grubb, 1998)
Nevertheless, the English and Welsh courts have come to accept, mainly through obiter dicta - judges’ expressions of opinion in court, which are not binding - that buried or not, and rightly or wrongly, the dead human body is subject to the ‘no property rule’ and can therefore not be stolen (Grubb, 1998).
The Australian case of Doodeward v Spence (1908), which centred on a two-headed foetus that was bought for exhibition, shows the rule at work. In this case, three High Court judges accepted that immediately after death a corpse cannot be considered property.
But their decision introduced the notion of the ‘sweat/equity rule’, where the application of work or skill to a human body or its part infers a right to retain possession of it (Kennedy and Grubb, 1994).
Judicial abhorrence at the idea of defining humans, alive or dead, as ‘goods or materials’ (Kennedy and Grubb, 1994) generally prevents the application of the ‘sweat/equity rule’.
In Dobson v North Tyneside Health Authority (1996) the relatives of a woman who had died of a brain tumour claimed that the health authority had been negligent for failing to diagnose the condition in time to prevent an early death. To prove their case, the tumours had to be examined to establish whether they were benign or malignant.
But the hospital had removed the brain, preserved it in paraffin and then disposed of it, so the relatives bought a second action alleging that the hospital had ‘converted’ their property and then disposed of it without the authority to do so.
The Court of Appeal rejected these claims on the grounds that the ‘no property’ rule applied to corpses, but set two qualifications: an executor can claim the right of possession for the purpose of burial or disposal, but no absolute right of possession or ownership is vested in the relatives unless they assume the role of executor.
Following Doodeward v Spence (1908), the court held that property rights could arise in respect of body parts where some work or skill differentiated the body or its parts from a corpse in its natural state.
The first case in which an English court held that parts of a dead body could be property under common law, and therefore may be stolen, is that of R v Kelly and Lindsay (1998). In this case the Court of Appeal faced the question of whether it was theft for a technician at the Royal College of Surgeons to remove body parts for the use of, and ultimately disposal by, an artist who wanted to make moulds of them for sculptures.
Acknowledging the judgements in Doodeward v Spence (1908) and Dobson v North Tyneside Health Authority (1996), the court applied the ‘sweat/equity rule’, and the ‘no property rule’ to the body parts in their natural state only.
But it said ‘parts of a corpse are capable of being property…if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes (R v Kelly and Lindsay, 1998). The court went on to convict Kelly and Lindsay of the theft of body parts.
So if R v Kelly and Lindsay (1998) and Dobson v North Tyneside Health Authority (1996) are read in conjunction they suggest that property rights can arise if work is done on the tissue with the intention of retaining the sample as a specimen or for some other purpose (Mason and McCall-Smith, 1999).
But how much work has to be carried out? R v Kelly and Lindsay (1998) suggests that simply preserving a sample in formaldehyde or carrying out an autopsy is enough to create property. And Dobson v North Tyneside Health Authority (1996) suggests the property belongs to the person intending to use it and not the source or his or her next of kin. If the Court of Appeal was correct in R v Kelly and Lindsay (1998) - that property rights will arise because of the inherent worth of tissue samples - then it can be deduced that they will not be vested in the source.
The implication of this is that ownership is abandoned at the point of consent: ‘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 (Venner v State of Maryland, 1976).
A case that demonstrates such a skewed attitude is the highly visible Moore v The Regents of The University of California (1990). Alleging the commercial exploitation of his cell line, a patient with leukaemia argued for a property claim based on the tort of conversion, that is that as the owner of the cells his property right had been compromised by the work carried out on them. The court ruled that he had effectively abandoned the cells when he surrendered them to his physicians and that it was inappropriate to recognise property in the body.
The broader grounds on which the court rejected his claim to an interest in his own cells was because of the limiting effect this could have on biotechnological development. ‘The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials,’ while creating a ‘litigation lottery’ for every researcher who works with cell samples (Moore v The Regents of The University of California, 1990).
To summarise, the majority opinion in this case was that although each of us is denied a property interest in excised parts of our bodies, third parties may acquire such interests and can use a form of property law to protect them (Kennedy and Grubb, 1994).
However, the court did declare: ‘We do not purport to hold that excised cells can never be property for any purpose whatsoever… [particularly] innocent parties who are engaged in socially useful activities’ (Moore v The Regents of The University of California, 1990).
Accordingly, a living source of tissue currently outside the body who made it clear that he or she had no intention of abandoning it or donating it in general could, in principle, assert a property interest in it, particularly if engaged in socially useful activities such as altruistic organ donation (Kennedy and Grubb, 1994).
The powerful dissent filed by Mr Justice Mosk, who was not part of the majority decision, argued that it failed to ‘respect the human body as the physical and temporal expression of the unique human persona’ and instead treated it as a commodity to be exploited (Moore v The Regents of The University of California, 1990).
He went on to say that the decision failed to consider ‘the notion of equity… [that] values fundamental fairness in dealing with [society’s] members and condemns the unjust enrichment of any member at the expense of another’ (Kennedy and Grubb, 1994).
The judge described the patient’s contribution to the commercial enterprise as ‘absolutely crucial’ and said that equitable sharing would occur if the courts recognised ‘that a patient has a legally protected property interest in his own body and its own products’ (Kennedy and Grubb, 1994).
The arguments for adopting a property approach to the body and its parts have been hotly debated, both in the courts and among academics. After evaluating the legal and ethical dimensions of the property proposal, the Nuffield Council on Bioethics (1995) recommended that human tissue should not be treated as a commodity and that taking and using it should be managed through a framework of consent, with an immorality exclusion applied to patents in the area of human and animal tissue.
The report was heavily criticised (Walsh, 1995; Matthews, 1995) for interpreting the concept of ‘property’ in an exploitative sense rather than as the right to control, use and dispose of it.
So the arguments in favour of a property approach suggest that rather than exploiting the individual, a property interest would highlight the value of the goods, that the market would reflect this and that the patient would be recompensed accordingly. Granting property rights for tissues might also increase the stock of scarce goods by rewarding people who provide them.
Conversely, there are many reasons for resisting the recognition of property rights in human tissues, living or dead. These include the risk of turning the body and its parts into commodities, which would be compounded by the problem of assessing the true market value, stifling the creation of new ways to provide tissues and organs, and maintaining a system in which the poor are most likely to sell body parts.
A property approach might also devalue the human body, for example changing the way people feel about donating an organ or tissue after the death of a child.
Reservations such as these, plus a general disinclination to consider the body as property, contribute to the consideration of the body as a unique object in law.
Despite such reservations, English law as it stands, if read in conjunction with Moore v The Regents of The University of California (1990), is inadequate.
As Gold (1996) observes, giving property rights to biotechnology researchers focuses the industry on cure rather than the pursuit of determining or eradicating the underlying causes of illness. Similarly, patients will continue to feel exploited if their bodies are treated as natural resources and they are not allowed to participate in the exploitation.
To avoid this, a framework such as that proposed by Grubb (1998) is required if rights to the use and control of human tissues that have been removed from patients are to be upheld. One way forward may be found in a piece of US legislation, The Genetic Privacy Act 1995. This vests a right of property over a DNA sample in the source of that sample. The act requires written consent from the sample source for the gathering and use of any tissue, putting that person in a stronger bargaining position if any research is profitable.
Alternatively, a possible appeal could be made under Article 8.1 of the European Convention on Human Rights (ECHR) - that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ - to support a claim of commercial exploitation arising from a third party’s use of live or dead tissues or parts.
Biotechnological advances will inevitably lead to new pharmaceutical products and research tools that depend on the availability of human tissues. A way to deal with the body in law, which upholds individual’s rights and prevents exploitation, needs to be found. The Genetic Privacy Act 1995 and ECHR may provide a new sense of direction, particularly if parliament takes up the challenge to change the principle of the no property rule.
- The full version of this article is available on the internet at: www.nursingtimes.net