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Published online by Cambridge University Press:  20 September 2016

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In disputes over the use and possession of the human body and its parts, there has been a marked reliance on property law concepts. Judges frequently resort to the language of “ownership”, “gifts”, “donations”, “trusts” and so on, in order to resolve disputes over the use of human biomaterials. When this happens, however, we observe certain recurring mistakes. Judges and academics writing in this area have sometimes misunderstood the basic rules governing the creation and operation of property rights. We do not seek to take a stance on the normative matters at stake. Our aim is to provide an accurate account of how property law could operate when applied in the context of human tissue use. We hope to redress some misconceptions, but our bigger goal is to provide a new methodology of how to work through the various questions that must be considered when determining how to regulate human tissue, by explaining how property principles would work at each stage. In this way, we seek to enable those who wish to debate whether property principles should be applied to human tissue the means to have accurate debates.

Copyright © Cambridge Law Journal and Contributors 2016 

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1 See variously “Haynes’ case” (1614) 77 E.R. 1389; R. v Kelly [1999] 2 W.L.R. 384; Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] Q.B. 1. For an overview of the development of this stance in common law, see Goold, I., “Why Does It Matter How We Regulate the Use of Human Body Parts?” (2014) 40 Journal of Medical Ethics 3 CrossRefGoogle ScholarPubMed.

2 Doodeward v Spence (1908) 6 C.L.R. 406; R. v Kelly [1999] Q.B. 621; AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB) and Dobson v North Tyneside Health Authority [1996] 4 All E.R. 474.

3 This position emerged originally in the Australian High Court decision in Doodeward (1908) 6 C.L.R. 40, and was later accepted in England and Wales in R. v Kelly [1999] Q.B. 621, AB [2004] EWHC 644 (QB) and Dobson [1996] 4 All E.R. 474.

4 Armory v Delamirie (1722) 1 Strange 505, 93 E.R. 664.

5 Yearworth [2010] Q.B. 1.

6 The sixth claimed only for mental distress.

7 No contractual claim could be brought, as the sperm was stored by an NHS Trust, with whom no contract had been made.

8 Yearworth [2009] EWCA Civ 37; [2010] Q.B. 1, at [45](a).

9 Ibid., at para. [45](f).

10 Ibid., at para. [28].

11 This approach was seen as involving a break with the past reluctance to recognise property rights at all, subject to the limited work and skill exception: ibid., at para. [45](a)–(e). In particular, it stated “we are not content to see the common law in this area founded upon the principle in Doodeward”: ibid., at para. [45](d).

12 For example, the doctrine of specificatio and the rules in relation to treasure. These are discussed further below.

13 Tucker v Farm & General Investment Trust Ltd. [1966] 2 Q.B. 421 (CA).

14 Moore v Regents of University of California (1990) 51 Cal. 3d 120.

15 Ibid., at p. 51.

16 Mosk J. (dissenting) took the view that such conversion claims would usually be defeated by the consent to donation given by the source individual.

17 Bazley v Wesley Monash IVF [2010] Q.S.C. 118; Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] N.S.W.S.C. 478.

18 J. Herring and P. Chau, “My Body, Your Body and Our Bodies” [2007] Med.L.Rev. 34, at 53.

19 Ibid., at pp. 54–55.

20 Bovenberg, J., “Inalienably Yours? The New Case for an Inalienable Property Right in Human Biological Material: Empowerment of Sample Donors or a Recipe for a Tragic Anti-commons?” (2004) 1 SCRIPT-ed 591 Google Scholar, at 575. See also Skene's suggestion that the allocation of property rights to source individuals would have a deleterious impact on hospital and research practices: Skene, L., “Proprietary Rights in Human Bodies, Body Parts and Tissue: Regulatory Contexts and Proposals for New Laws” (2002) 22 L.S. 102 Google Scholar, at 107–08, 120.

21 Skene, L., “Arguments against People Legally ‘Owning’ Their Own Bodies, Body Parts and Tissue2 M.L.S.J. 163 Google Scholar, at 147; Skene, L., “Proprietary Interests in Human Bodily Material: Yearworth, Recent Australian Cases on Stored Semen and Their Implications” (2012) 20 Med.L.Rev. 227 CrossRefGoogle ScholarPubMed, at 242. See also Hawes, C., “Property Interests in Body Parts: Yearworth v North Bristol NHS Trust ” (2010) 73 Med.L.Rev. 130 CrossRefGoogle Scholar, at 131; Dworkin, G. and Kennedy, I., “Human Tissue: Rights in the Body and its Parts” (1982) 1 Med.L.Rev. 291 CrossRefGoogle Scholar, at 303.

22 490 F. 3d 667 (2007).

23 490 F. 3d 667 (2007), at [41].

24 For criticism, see Goold, I., “Abandonment and Human Tissue” in Goold, I. et al. (eds.), Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Oxford 2014), 125 Google Scholar.

25 The Nuffield Council on Bioethics recognised this in its 1995 report: Nuffield Council on Bioethics, Human Tissue: Ethical and Legal Issues (1995), para. 9.13. See also Moore (1990) 51 Cal. 3d 120, 144, per Panelli J.

26 Mills, S., “Owning my ‘Self’: A Reconciliation of Perspectives on the Body” (1999) 6 U.C.L. Jurisprudence Review 191 Google Scholar, at 204.

27 The legal device of a deed illustrates this easily − the right to property in an item can be transferred by deed even though physical possession of that item is retained.

28 See further R. Nwabueze, “Cadavers, Body Parts and the Remedial Problem” in Goold et al. (eds.), Persons, Parts and Property, pp. 170ff.

29 See e.g. Swadling, W.J. in Burrows, A.S. (ed.), English Private Law, 2nd ed. (Oxford 2007), [4.568]Google Scholar; Goold, “Abandonment and Human Tissue”. For an excellent review of commonwealth authority, see Hudson, E. and Burrell, R., “Abandonment, Copyright and Orphaned Works: What Does It Mean to Take the Proprietary Nature of Intellectual Property Rights Seriously?” (2011) 35 Melbourne Law Review 971 Google Scholar, at 974–82. Hudson and Burrell are more optimistic about the possibility of abandonment than the present authors.

30 Skene, L., “Ownership of Human Tissue and the Law” (2002) 3 Nature Reviews: Genetics 145 CrossRefGoogle ScholarPubMed, at 147. Dworkin and Kennedy, “Human Tissue”, p. 303. See also Lori Andrews's view that “The courts in Moore and Greenberg could assume a gift was made, or that the tissue was abandoned, because there was no document reserving any rights on the part of the patients”: Andrews, L., “Who Owns Your Body? A Patient's Perspective on Washington University v Catalona” (2006) 34 Journal of Law, Medicine and Ethics 398 CrossRefGoogle Scholar, at 400. It should be noted that Skene is writing in the Australian context, where the threshold for finding something has been abandoned is arguably lower, but it is still highly contestable that a mere failure to claim a future interest in one's property amounts to abandonment (Goold, “Abandonment and Human Tissue”, p. 125).

31 Goold, “Abandonment and Human Tissue”, pp. 130ff.

32 T.H. Murray, “The Gift of Life Must Always Remain a Gift” (March) Discover 90, at 90. See also Herring and Chau, “My Body, Your Body and Our Bodies”, p. 42; Harrison, C.H., “Neither Moore nor the Market: Alternative Models for Compensating Contributors of Human Tissue” (2002) 28 A.J.L.M. 77 Google ScholarPubMed, at 89; Munzer, S.R., “An Uneasy Case Against Property Rights in Body Parts” (1994) 11 Soc. Phil. Policy 259 CrossRefGoogle ScholarPubMed, at 286; Banwell, C., “Should I have Property in my Body?” (1994) U.C.L. Jurisprudence Review 1 Google Scholar.

33 On concerns about commercialisation and its relationship to propertisation (on which there is a wide spectrum of views), see e.g. Banwell, “Should I Have Property in My Body?”; Karlsen, J.R. et al. , “To Know the Value of Everything – a Critical Commentary on B Bjorkman and S O Hansson's ‘Bodily Rights and Property Rights’” (2006) 32 Journal of Medical Ethics 215 CrossRefGoogle Scholar, at 216–18. L.B. Andrews, “My Body, My Property” 16 Hastings Center Report 28.

34 This view is nearly ubiquitous in the literature around property in body parts, and can very often be traced to a misconception of Tony Honoré’s work on the concept of ownership in Honoré, A.M., “Ownership” in A. Guest (ed.), Oxford Essays in Jurisprudence (Oxford 1961), 107 Google Scholar.

35 Hohfeld, W., “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 26 Yale L.J. 16 CrossRefGoogle Scholar.

36 D. Pride & Partners (A Firm) v Institute for Animal Health [2009] EWHC 685 (QB); [2009] All E.R. (D) 84 (Jul); Club Cruise Entertainment & Travelling Services Europe BV v Department for Transport (The Van Gogh) [2008] EWHC 2794 (Comm); [2009] 1 All E.R. (Comm) 955.

37 Hohfeld, “Some Fundamental Legal Conceptions”, 38.

38 Allen v Flood [1898] A.C. 1, 29, emphasis is added. Further note: “Evidence of [the fact that a “right to use” is not a crucial element of ownership] can be found in the numerous examples of statutes that have deprived owners of liberties to use their things without depriving them of ownership”: S. Douglas, “Property Rights in Human Biological Material” in Goold et al. (eds.), Persons, Parts and Property, p. 103.

39 But note that B, C, D, etc. each has the same liberty.

40 Although compare the view of Nwabueze, who suggests that there is a “right to use” things, but that the existence of such a right does not in and of itself admit such things to the category of property”: Nwabueze, R., “Death of the ‘No-Property’ Rule for Sperm Samples” (2010) 21 King's Law Journal 561 CrossRefGoogle Scholar, at 563–64.

41 This is an example of a property-independent restriction. As James Harris pointed out in Property and Justice, “the use-privileges inherent in full-blooded ownership never carry even prima facie exemption from property independent prohibitions. The recognition that I am prohibited from smashing windows with my hammer does not contradict my claim to be ‘full’ owner of the hammer”: Harris, J., Property and Justice (Oxford and New York 1996), 248 Google Scholar. He also rightly notes elsewhere that “claim-rights and duties are conferred or imposed by rules which presuppose ownership interests and are not, analytically, integral to ownership conceptions”: ibid., at p. 30. That said, there are a small number of “property-limitation rules” that do run with the ownership interest, such as duties not to use one's land such as to cause a nuisance: ibid., at p. 34, but, in the main, restrictions on use of property are not integral to the ownership of that property per se.

42 See generally Gray, K., “Land Law and Human Rights” in Tee, L. (ed.), Land Law: Issues, Debate, Policy (Cullompton 2002), 211 Google Scholar.

43 Town and Country Planning Act 1990, s. 57.

44 This was, in fact, accepted in Yearworth.

45 The status of such tissue is unclear. It may be property in accordance with s. 32(9) of the Human Tissue Act 2004, which essentially gives legislative form to the common law work and skill exception. However, given the limited interpretation of this exception taken in Dobson [1996] 4 All E.R. 474 and AB [2004] E.W.H.C. 644 (QB), tissue samples sold for research may not fall within it. However, trade in it is probably permitted via s. 32(6) of the same Act.

46 G. Gaius, Institutes, Book II.13.

47 McFarlane, B., The Structure of Property Law (Oxford 2008), 137 Google Scholar.

48 Although compare the position taken by Quigley, M., “Property in Human Biomaterials – Separating Persons and Things?” (2012) 32 O.J.L.S. 659 Google Scholar, at 681–82. Several scholars who support the notion of self-ownership draw support for their arguments from Lockean labour theory – a theory that is premised upon self-ownership. James Harris, a critic of the notion of self-ownership, argued that that Lockean theory's reliance on self-ownership meant that is was premised upon a “spectacular non-sequitor”: Harris, Property and Justice, p. 196.

49 McFarlane, Structure of Property Law, p. 137.

50 For centuries, the position was that a corpse was not an appropriate subject for ownership due to its special nature and associated religious reasons: Matthews, P., “Whose Body: People as Property” (1983) 36 C.L.P. 193 Google ScholarPubMed.

51 For example, at one point, Loane Skene argued in favour of source individuals having a “personal autonomy right” not to have body parts removed: Skene, “Proprietary Rights in Human Bodies”, p. 123. Jonathan Herring supports a regulatory scheme: see J. Herring in I. Goold et al. (eds.), Persons, Parts and Property, p. 587. See also those who have made various suggestions based on a personality rights or a personal injury analysis, rather than property basis: Whitty, N., “Rights of Personality, Property Rights and the Human Body in Scots Law” (2004–5) 9 Edin.L.R. 194237 CrossRefGoogle Scholar; Harmon, S., “ Yearworth v North Bristol NHS Trust: A Property Case of Uncertain Significance?” (2010) 13 Medical Health Care and Philosophy 343 CrossRefGoogle ScholarPubMed, at 348–49.

52 See e.g. the views of Herring, Murray and Skene, ibid.

53 A limited form of protection against such an act may come from intellectual property law that affords moral rights to the author of such a work to prevent its destruction in certain circumstances. However, this protection is personal to the author and could not be invoked by others.

54 Colavito v New York Organ Donor Network (Nos 1–4) 356 F Supp 2d 237 (E.D.N.Y., 2005); 438 F.3d 214 (USCn Cir., 2006); 8 N.Y.3d 43 (CA N.Y., 2006); 486 F.3d 78 78 (U.S. C.A. 2nd Cir., 2007).

55 Ibid., at pp. 238–39.

56 Such security cannot be achieved merely by reference to a law against theft, as theft is necessarily premised on a system of private property and the right to exclusive possession that that allows.

57 See e.g. the famous passage in D. Hume, A Treatise of Human Nature, Book III, Part 1, Section 2.

58 These duties are not enforced directly through the action of vindicatio, but find their expression through the “oblique” or “indirect” claim in the tort of conversion. See Birks, P., “Personal Property: Proprietary Rights and Remedies” (2000) 11 Kings College Law Journal 1 CrossRefGoogle Scholar.

59 See R. v Rothery (1976) Crim L.R. 691; R. v Herbert (1961) 25 J.C.L. 163; R. v Farrant [1981] 3 Cr. App. R. 524; R. v Welsh (1974) R.T.R. 478. See also the discussion in Roche v Douglas as Administrator of the Estate of Edward Rowan (dec'd) (2000) W.A.;S.C. 146.

60 Theft Act 1968, ss. 4, 5.

61 Applying the Doodeward exception, it was held that they were and the defendants were convicted for theft.

62 For example, the Frick Gallery in New York is subject to severe limitations that block the sale of existing paintings and indeed whether those paintings can travel outside the gallery: Glaeser, E.L., “Introduction” in Glaeser, E.L. (ed.), The Governance of Not-for-Profit Organizations (Chicago 2003), 28 CrossRefGoogle Scholar.

63 Note that there are comprehensive rules governing this, related primarily to the variation of trusts.

64 Note Young v Hitchens (1844) 6 Q.B. 606; 115 E.R. 228.

65 Pierson v Post (1805) 3 Cai. R. 175. For English cases, see Churward v Studdy (1811) 104 E.R. 596 and Young (1844) 6 Q.B. 606; 115 E.R. 228.

66 Although compare Young (1844) 6 Q.B. 606; 115 E.R. 228.

67 See the Doodeward, Kelly line of cases.

68 Clough Mill Ltd. v Martin [1985] 1 W.L.R. 111.

69 Treasure Act 1996, s. 4.

70 A non-assignable lease may be an example; historically there were restrictions on transferring title to land.

71 This could be via gift, sale or transfer of limited rights via bailment.

72 Note that there are other ways to achieve this: by deed and contract of sale; in regard to land, by grant and registration.

73 Specifically deed, delivery and sale. See Cochrane v Moore (1890) 25 Q.B.D. 57.

74 Under the Export Control Act 2002, s. 1(1), the Secretary of State is able to make orders restricting the export of certain goods including cultural objects such as paintings.

75 We use the word “defence” in a very wide sense, to describe any argument that B could make in order to avoid liability.

76 Particularly in the context of the law of wreck and salvage of ships: The Crystal [1894] A.C. 508 and Hudson, A., “Abandonment” in Palmer, N. and McKendrick, E. (eds.), Interests in Goods, 2nd ed. (London 1998)Google Scholar.

77 Banknotes and cheques are two examples where a bona fide purchaser defence applies. See Miller v Race (1758) 1 Burr. 452 and the Cheques Act 1957, s. 1(1).

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