Melbourne Law School - Research Publications

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    Arguments against people "owning" their own bodies, body parts and tissue
    SKENE, LOANE ( 2002)
    There are a number of reasons why people should not, as a general principle, be recognised as having proprietary rights in their own body, body parts and tissue. This paper commences with some of the arguments against recognising such rights then examines in more detail the arguments that have been put forward in favour of recognising them. In relation to the latter, counter-arguments are put to each argument. The author argues that the counter-arguments outweigh the arguments. This leads to her conclusion that the law should not recognise proprietary rights in bodies, body parts or tissue in favour of the people from whom they came, though proprietary rights may arise in favour of a third person, by principles that suggested in the paper.
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    Legal issues related to the ownership of and access to bodily material
    SKENE, LOANE ( 2002-01)
    Who owns your body and parts removed from it? Can you legally sell your bodily material - or information derived from it? Can you legally prevent other people gaining access to your excised bodily material, including your blood relatives who may need your tissue or genetic information for their own genetic tests? What legal remedies are there if people take or use your bodily material without your consent? And why are the answers to these questions vitally important for scientists?
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    Proprietary rights in human bodies, body parts and tissue: regulatory contexts and proposals for new laws
    SKENE, LOANE (Hein, 2002)
    This paper examines the law on the proprietary rights of people in respect of their bodies, body parts and tissue. Proprietary rights include rights of ownership and control. The paper argues that the context in which judicial decisions are made and policy recommendations are developed sometimes results in a patchwork of legal principles. Being aware of the context in which different aspects of the law have been developed enables us to understand why principles have been developed, what is needed to reconcile them and how we can establish a coherent regulatory regime. The paper then proposes such a scheme to deal with proprietary and control rights in this area. It argues that people (or the personal representatives of people who have died) should have a personal autonomy right to be consulted about the use of their corpse or their excised body parts or tissue in teaching, research and commercialisation of biological inventions, and to refuse or to impose conditions. They should not, however, have a right of ultimate ownership in their corpse, body parts or tissue, except for the limited right of personal representatives to gain possession of bodies and body parts of people who have died for burial or cremation if they so wish. That right should not extend to tissue preserved on slides, in paraffin wax or similar format. That tissue should be subject to proprietary interests in favour only of the hospital, research institute, its staff or the people to whom they transfer it. The same rule should apply to bodies or body parts held by a hospital or research institute with the consent of the person concerned, though the bodies or body parts may ultimately have to be returned for burial or cremation. Tissue removed under a statutory requirement without consent, such as for coronial investigation or forensic tests, should be used only for the purposes prescribed by the relevant legislation.
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    Ownership of human tissue and the law
    SKENE, LOANE (Nature Publishing Group, 2002-02)
    Genetic researchers and medical practitioners often need to obtain access to stored human tissue without consent from the people concerned. But the laws that relate to the ownership of, and control over, stored human tissue are at present unclear, especially in the light of recent cases and inquiries. Here, I discuss how the law might be clarified, and argue that the law should allow stored human tissue to be used without consent, providing that this occurs with ethical approval and that the confidentiality of the donor is protected.