Proprietary rights in human bodies, body parts and tissue: regulatory contexts and proposals for new laws

Abstract

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.