Recognising Property Rights In One's Body And Its Parts

RECOGNISING PROPERTY RIGHTS IN
ONE’S BODY AND ITS PARTS
Benjamin Cope
November 2011

Student: B. Cope- 30801347 Supervisor: J. Mugambwa Page 1 of 20
RECOGNISING PROPERTY RIGHTS IN ONE’S BODY AND ITS PARTS
Recognising property rights in the human body and its parts remains a controversial
legal issue that is yet to be comprehensively dealt with. This paper will argue that
legally recognising property rights in one’s body and its parts is needed in order to
keep up with social attitudes and medical advancements. It will establish that property
law is an appropriate system for dealing with the infinite medical and technological
advancements in the human body that society will be faced with in the future. This
paper will begin by briefly defining the concept of property and examining social
attitudes and their development. The approach of the common law will then be
analysed by discussing some relevant cases. Arguments opposing the recognition of
property rights will be discussed followed by arguments in favour of the recognition
of property rights. A brief introduction to legislation and reforms that relate to
property law in the human body will be examined, and finally this paper will discuss a
proposition for the implementation of new legislation.
THE CONCEPT OF PROPERTY AND ITS DEVELOPMENT
“Property is the institution by means of which all societies regulate access to material
resources or things”.1
In the Aboriginal land rights case of Milirrpum v Nabalco,2
Blackburn J defined the
legal meaning of property as:
“…property in its many forms, generally implies the right to use or enjoy, the
right to exclude others, and the right to alienate. I do not say that all these
rights must co-exist before there can be a proprietary interest, or deny that
each of them may be subject to further qualification.”3
It is important to note that although Blackburn J implies that these elements must
‘generally’ exist, it is possible to establish a property interest with some of them
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1
B J Edgeworth et al, Australian Property Law (8th
ed, Australia, Butterworths,2008) 1.1
2
Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141
3
Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141, 171

missing. This definition was further affirmed in the High Court case of Yanner v
Eaton.4
Gleeson CJ, Gaudron, Kirby and Hayne JJ construed that the term ‘property’:
“…does not refer to a thing; it is a description of a legal relationship with a
thing. The concept of ‘property’ may be elusive. Usually it is treated as a
bundle of rights. It refers to a degree of power that is recognised in law as
power permissibly exercised over the thing… Much of our false thinking about
property stems from the residual perception that ‘property’ is itself a thing or
resource rather than a legally endorsed concentration of power over thing and
resources…”5
The concept of property therefore defines the legal relationship between persons in
respect to things, though the subject matter and objects are constantly varied.
It has been suggested that the ‘bundle of rights’ has a set of fundamental elements that
must be present for the recognition of a property right to be established. Different
combinations have been suggested as to what these core elements should be with the
most common including the right to use or enjoy, the right to exclude others, and the
right to alienate.6
Although not all of these rights are common to every form of
property in all circumstances, not all of the rights from the ‘bundle of rights’ need to
be present to establish a property interest. However, this does not necessarily equate
to full and unfettered ownership.7
The terms ‘ownership’, which indicates complete
control over a thing, and ‘possession’, which is evidence of a property interest, can be
distinguished from each other,8
however both are recognised as an enforceable
property right.9
Property law is both a legal and social institution, and thus it is important for
consideration to be given in its historical, social, and economic context.10
Historically,
the subject matter of property has changed. Persons such as slaves were once
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4
Yanner v Eaton (1999) 201 CLR 351
5
Yanner v Eaton (1999) 201 CLR 351, 17
6
Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008) 30
Sydney Law Review 652
7
Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position in Western Australia’
(2002) 4 The University of Notre Dame Australia Law Review 99
8
Yanner v Eaton (1999) 201 CLR 351, 85
9
Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position in Western Australia’
(2002) 4 The University of Notre Dame Australia Law Review 100
10

prohibited from owning property under the law,11
and England did not see a married
woman able to hold property in her own name until 1935.12
Socially, the community’s
influence has played a significant part in property law and its application to the
human body, and shows the objects of property are also subject to change. Society has
disapproved of the sale of one’s body and its parts for reasons such as that it is
‘immoral traffic, objectionable in itself and filled with possibilities of abuse, ranging
from the exploitation of children…to encouragement to murder.’13
These attitudes
placed a higher moral importance on the human body rather than diminishing it to the
notion of nothing more than a mere object. Despite these, and many similar
arguments, there is precedent showing the recognition of the human body as an object
of property.14
Slavery, although now abolished in all Western democracies, did not
disappear completely from England until the eighteenth century.15
Furthermore it still
exists throughout many Eastern, African and South American societies in forms such
as sale of women and children, sexual exploitation and forced labour.16
These kinds of
property law principles have been applied to the human body with relative ease in the
past and, though now illegal, continue in the present day. This acceptance of a
property right in the human body, shows how easily the lines between what is morally
right or wrong have been distorted to suit the view of society at the time.
In more modern times, the development of new technology has forced courts and
legislature to consider whether a human body and its parts should be treated as
property.17
These new technologies have society concerned with controlling the
potential uses of their body and its parts.18
This perception shows that whilst the
human bodies capability of utilising its parts to cure disease and repair defective
bodies is accepted by society,19
it is also expected that some safeguards exist to
prevent possible exploitation.
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11
Matthew J Lynch, Property in Human Gametic Material and the New Reproductive Technologies (1999) 6 JLM
348 at 349
12
Women’s International Centre, Women’s History in America (1994) http://www.wic.org/misc/history.htm
13
Russell Scott, The Body as Property (New York, The Viking Press, 1981) 183
14
15
Russell Scott, The Body as Property (New York, The Viking Press, 1981) 26-27
16
17
18
Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body parts and Tissue (2002) 2
Macquarie Law Journal 165, 167
19

Economically, one’s body and its parts are now considered to be valuable, in financial
terms, as a result of medical and technological advancements. Due to the
commercialisation of these materials, researchers, investors and donors can all be
expected to claim rights of control over the human body and its materials.20
The
processes involved in researching and developing new technologies through to their
practical application can require huge sums of money.21
For example, the cost of
cancer research in Australia in 2000-2001 was $378 million.22
The costs involved in
kidney transplantation in Australia for an individual range from $65,000 to $75,000 in
one lump sum with $11,000 for ongoing treatment per annum.23
Courts will usually look to both economic and noneconomic modes of valuation when
determining property rights, as well as considering any policy issues. There are
several forms that attempt to define the scope of property24
, however in regards to
property rights in the human body and its parts, consideration should be given to its
economic value due to increasing commercialisation. Many judiciaries endeavour to
keep uniformity between the legal definition of property and its commercial meaning.
The reason for this is the argument that ‘if commerce treats valuable and transferable
assets as property, so should the courts’.25
THE COMMON LAW’S APPROACH
As we have seen, the recognition of property rights in a person’s body or body
products is a controversial issue, and is a subject that the judiciary is cautious with in
its treatment and approach.
There are several cases that touch on property law in relation to the human body. In
the United States, Moore v Regents26
is one significant case that discusses at some
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20
E. Richard Gold, Body Parts: Property Rights and the Ownership of Human Biological Materials (Washington,
D.C., Georgetown University Press, 1996) 43
21
22
Cancer Council Australia, Facts and Figures (2011) http://www.cancer.org.au/Newsmedia/factsfigures.htm
23
Transplant Australia, The Benefits (2011) http://www.transplant.org.au/The-Benefits.html
24
Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008)
30 Sydney Law Review 647: “…an insistence that rights fall into some recognised category (the ‘recognised
category test’); the test in National Provincial Bank Ltd v Ainsworth (the ‘Ainsworth test’);54 a focus on the
commercial treatment of a thing (the ‘commerce test’); a focus on the nature of the thing itself (for example, the
‘excludability test’); an assessment of the extent to which rights operate in rem (the ‘in rem test’); or minimal
requirements as to which rights are recognised with respect to a thing (the ‘core bundle of rights test’)…”
25
Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From Cells to Cyberspace’ (2008)
30 Sydney Law Review 650
26
Moore v Regents of the University of California (1990) 51 Cal 3d 120

length the application of property law to regulate medical and scientific advancements
in the human body.
In 1976, after being diagnosed with hairy-cell leukaemia, John Moore began
treatment at the Medical Centre of the University of California in Los Angeles. Dr
David Golde, the attending doctor, recommended that Moore undergo a splenectomy
in order to slow down the progress of his disease. Moore subsequently signed a
written consent authorising the procedure and allowing the hospital to “dispose of any
severed tissue or member by cremation”. Moore returned to the University of
California Medical Centre several times thereafter at Dr Golde’s direction. Each visit
saw Golde withdrawing additional samples of blood, blood serum, skin, bone marrow
and sperm. In 1983 Moore was given a different consent form to sign, which gave any
rights of ownership from potential cell lines, or other products derived from Moore’s
tissue to the University of California. Moore refused to sign and sought the assistance
of an attorney who discovered a patent. In 1979 Golde had established a cell line from
Moore’s T-lymphocytes, and realising the commercial potential of the cell line and its
derived products- estimated to be around three billion dollars- he planned to benefit
financially by exploiting the cells and their exclusive access to them by virtue of the
doctor-patient relationship between himself and Moore. In 1984 a patent was issued to
the Regents, with Golde listed as one of the investors. Golde then negotiated
commercial agreements for the development of the cell line and other products
derived from it.
Upon Moore discovering the commercial value of his spleen and other cells, he
brought a cause of action in conversion for the use of his cells in medical research.
The Court’s biggest concern in dealing with this conversion claim was the potential
impact on research and development in pharmaceutical products if they found in
favour of Moore27
. Researchers and pharmaceutical companies could be unwilling to
use tissue from donors if there was a possibility of litigious actions brought against
them because of the uncertainty of whether proper consent was given by the owner in
light of possible commercial development28
. Per Arabian J, there are profound
implications for
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27
28

“…the impact on research and development of competitive bidding for such
materials, and the exposure of researchers to potentially limitless and
uncharted tort liability…”29
For these reasons, Moore’s action was ultimately unsuccessful, with the majority
finding that policy considerations outweighed a finding in favour of a liability in
conversion. The possible repercussions on socially useful activities30
such as medical
research were too great. It was further opined that moral, philosophical and religious
values were too much at stake. The potential implications and effect on human dignity
that could arise from enforcing a property interest in body tissue could not be
comprehended31
. Dissenting judgments made by Broussard and Mosk JJ, were in
favour of recognising property rights in one’s body and its parts, however their
application turned more on the commercial aspects of the situation.
“...if this science has become science for profit, then we fail to see any
justification for excluding the patient from participation in those profits…”32
This statement made by Mosk J, conveys that a recognised property right was morally
acceptable in order to value the contributions of the individual to the research.
Broussard J also noted that the majority finding could not have anticipated, and did
not suggest otherwise, that a removed body part could never become property33
,
giving the proposition of a competing company stealing the cells in question from the
University of California Medical Centre for their own benefit. He stated that it would
be unquestionable that a cause of action for conversion could be brought against the
thief under those circumstances.
Within Australian jurisdictions, there have been a few significant cases that have dealt
with the application of property law to the human body. As the following cases will
demonstrate, the courts appear reluctant to recognise property rights in a human body
or its parts unless the subject material possesses attributes that distinguish it from raw
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29
Moore v Regents of the University of California (1990) 51 Cal 3d 120, 149
30
31
32
Moore v Regents of the University of California (1990) 51 Cal 3d 120, 175-6
33

biological materials. The High Court case of Doodeward v Spence34
involved a
stillborn ‘two-headed baby’ preserved in a bottle filled with spirits. The attending
doctor kept the preserved specimen and later sold it to the appellant. The appellant
profited from putting the specimen on display until police seized it in an attempt to
recover it for the plaintiff. The court found that the specimen was capable of being
property. The case set the principle for allowing human material to be converted to
property so long as ‘work and skill’ has been applied to it. Griffiths CJ held that that,
“…when a person has by the lawful exercise of work or skill so dealt with a
human body or part of a human body in his lawful possession that is has
acquired some attributes differentiating it from a mere corpse awaiting burial,
he acquires a right to retain possession of it…”35
In New South Wales, the case of Pecar v National36
, the plaintiff sought access to the
human tissue of the deceased in order to carry out DNA testing, to prove that he was
the son of the deceased and entitled to claim under intestacy. The tissue was stored by
a pathology business, and would only release the samples under the direction of a
court order. The plaintiff relied on the Supreme Court Rules 1970 (NSW) 25 r 8,
which authorised the court to direct persons not involved in the litigation to allow
inspection, taking of samples, and making of observations in relation to any property.
In considering whether the tissue was property, Bryson J referred to the principle of
Doodeward v Spence37
finding that as the human tissue was fixed in paraffin, it was
capable of being classified as property under the Supreme Court Rules 1970 (NSW)
25 r 8, as ‘work and skill’ had been applied.
Similarly, Roche v Douglas38
in the Western Australian Supreme Court, applied the
principle of Doodeward v Spence39
to brain tissue that was stored in paraffin wax. In
this case, the plaintiff made an application under the Supreme Court Rules 1971
(WA), O 52, r 3(1) for an order enabling tests to be conducted on the tissue specimens
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34
Doodeward v Spence (1908) 6 CLR 406
35
Doodeward v Spence (1908) 6 CLR 406, 414
36
Pecar v National Australia Trustees Ltd and Anor (unreported) NSW Supreme Court (no518 of 1996) (27
November 1996)
37
38
Roche v Douglas [2000] WASC 146
39

or DNA of a deceased person, which were held at a laboratory. This section allows
the court to make orders on terms for- the taking of samples of property; the making
of any observation of any property; the trying of any experiment on or with any
property; or the observation of any process. In doing this, the court may authorise any
person to enter upon or into any land or building in the possession of any party, or to
do any other thing for the purpose of getting access to the property. The defendant
argued that it was not within the court’s power to make such an order, as the tissue
specimens were not property. The court dismissed this argument, ruling that it did
possess the power to make the order allowing for DNA testing of the specimens as
they were considered property of the laboratory for the purposes of the rule.
A final case that requires consideration in the context of property rights to human
tissue is the case of S v Minister for Health40
. The human tissue in this case was the
sperm of the deceased, and the application for the extraction of it was made only a
matter of hours after the deceased had died. The reason for this being that in an expert
opinion, the removal of the material more than 24 to 36 hours after death would be of
no use for any IVF procedure involving that material. The applicant testified that she
had been married to the deceased for four years, and they had been in the process of
undergoing IVF procedures in an attempt for her to conceive. At the date of the death
of the deceased, 5 November 2008, they had an appointment on the 16 November
2008 with a medical practitioner for the removal of her eggs and his sperm, and the
applicant was under no impression of any withdrawal of consent for the use of his
sperm for the purpose of artificial insemination.
In her submissions the applicant relied on the Supreme Court Rules 1971 (WA) O 52 r
3 and the Human Tissue and Transplant Act 1982 (WA) (HTT Act) sections 22 and
27. Specifically, the rule in O 52 r 3 reads:
(1) The Court may for the purpose of enabling the proper determination of any
cause or matter or of any question arising therein, make orders on terms for -
(a) the taking of samples of any property;
(b) the making of any observation of any property;
(c) the trying of any experiment on or with any property; or
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40
S v Minister for Health (WA) [2008] WASC 262

(d) the observation of any process.
(2) An order under paragraph (1) may authorise any person to enter upon or
into any land or building in the possession of any party, or to do any other
thing for the purpose of getting access to the property.
Simmonds J cited the case of Roche v Douglas41
, as authority for the proposition that
the word ‘property’ in O 52 r 3 is capable of including tissue taken from the body of a
person who subsequently died. He went on to state that he did not see fit to
distinguish between taking tissue samples before or after death. In justifying his
orders to allow the sperm to be removed and stored by a medical professional,
Simmonds J had to first be satisfied that sections 22 and 27 of the HTT Act had been
met. The former section requiring that a designated officer may authorise the removal
of tissue from bodies in a hospital, the latter requiring the coroner’s consent to post-
mortem in some cases. Neither section required the subject matter to be any person’s
property thus it is implied that this has been established, particularly when read in
conjunction with Supreme Court Rules 1971 (WA) O 52 r 3. Citing authorities from
the Victorian jurisdiction42
, Simmonds J held that it was permissible to make orders
for the removal and storage of the material in this instance, ‘…where the conditions in
legislation like HTT Act s22 and, where applicable, s27 are met’43
. In his decision, he
further stressed the order made that the sperm and any other material removed and
stored was not to be used for any purpose, including the IVF procedure that the
applicant sought to have performed, without an order of the court, at which the
Minister for Health would have the opportunity to appear44
.
In making the order for the removal and storage by a medical professional, Simmonds
J did not indicate that the sperm of the deceased was any person’s property. Therefore
this implies two possibilities, the first being that neither the applicant nor the medical
professional hold property rights in the sperm. The second more likely possibility if
based on precedent, would be the medical professional holds property rights in the
sperm as ‘work and skill’ would have been applied in its removal and storage.
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41
42
AB v Attorney-General for the State of Victoria [2005] VSC 180; Y v Austin Health [2005] VSC 427 – The
Victorian authorities distinguish between the making of orders for removal and storage of material, and the making
of orders for the use of the material so removed and stored.
43
S v Minister for Health (WA) [2008] WASC 262, 18
44
S v Minister for Health (WA) [2008] WASC 262, 26

ARGUMENTS AGAINST RECOGNISING PROPERTY RIGHTS
There are several arguments that argue against recognising property rights in one’s
body. One such argument is that recognising property rights is unnecessary as laws
such as battery, negligence, assault, and privacy, provide sufficient protection to the
human body and its parts.45
Tort law protects autonomy
Tort law protects an individual from having their body ‘invaded’. If a person’s body is
‘invaded’, or something is removed from it without the consent of the individual, or
legal justification, this would make it a battery and also a criminal offence.
Negligence laws require the full disclosure by the health professional of all
information relevant to a medical procedure before consent is obtained from their
patient. Therefore a person is protected from wrongful acquisition of body parts and
tissue. Privacy laws are able to focus directly on the perceived harm and better deal
with the possibilities arising from the wrongful use of body parts or tissue after their
removal.
The body as a commodity
Another argument in allowing people to exercise property rights over their body and
its parts is the potential for the human body to be regarded as a commodity.46
This
may change societies attitude towards the human body and its parts, and furthermore
may alter how society perceive and treat living people47
. One possibility could be a
shift in the ‘opt-in’ attitude towards organ donation, with the greater community
viewing organ donation as a duty of its citizens to make their parts available to those
who need it48
.
With commodification of the human body and its parts, comes a string of economic
complications likely to cause considerable damage to society. As already discussed,
the courts are likely to look at a good’s economic worth in determining whether
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45
Macquarie Law Journal 165, 167-168
46
47
Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in
Australia, Report No 96 (2003) 20.21
48

property rights ought to be attached49
. The problem with this approach is that there is
a clear difference between the human body and its parts when compared to other
commodities. Any attempt to put a price on the human body, and its ability to cure
disease and repair defective bodies, is morally reprehensible and undermines the very
value that we place on it. The intrinsic value of the human body should not be
confused with price50
.
With the recognition of property rights in the human body, and its subsequent
commodification, arises the ability of an individual to engage in trade and commerce.
This raises several concerns for all parties involved in this kind of transaction. The
selling of goods in Western Australia falls under the Sale of Goods Act 1895 (WA),
with similar provisions throughout other jurisdictions. Accepting one’s body and its
parts as property, could subsequently lead to it falling under ‘goods’ within the
meaning of the Sale of Goods Act 1895 (WA). The problem appears that current
legislation was not written with the sale of human body’s and their parts in mind, and
so consequences are possible that were never contemplated. A contract of sale could
potentially see disputes arising over the terms and conditions, the price, the
performance of the contract, the rights of the buyer and seller, and remedies of the
parties. It seems incomprehensible for courts to be ruling on a case of say perhaps, a
faulty heart or liver, and what damages would be awarded to the suffering party.
Quality of human parts
Another argument against recognising property rights in one’s body and its parts, is
the possibility of lesser quality materials being traded than those that are altruistically
donated.51
This is founded by blood sales from alcoholics and drug addicts who do
not fully inform others of any health defects and other personal information. These
vulnerable people, and others such as the homeless and the poor, will be more likely
to sell their body parts, thus creating a further separation of the classes. The
possibility of buying body parts in order to repair or cure one’s health problems
would inevitably become a comfort only afforded by the wealthy52
.
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49
50
51
52

Self-destruction
A final argument against the recognition of property rights in one’s body and its parts
is the notion that no person should have the freedom of ‘self-destruction’53
.
Potentially, recognising property rights could create a strong argument for suicide and
euthanasia to be legalised. The bundle of rights that allows an individual to, amongst
other things, use or enjoy, exclude, and alienate others from their property, in this
case their body and its parts, could overrule current legislation54
that for the good of
society, imposes limits upon the individual’s freedom to do with himself as he
wishes.55
ARGUMENTS IN FAVOUR OF RECOGNISING PROPERTY RIGHTS
As mentioned earlier, society appears mainly concerned with the potential uses of
their body and its parts. Much like the arguments against property rights, there are
also several arguments that favour the recognition of property rights in human bodies
and their parts.
Economic incentives
In the United States case of Moore v Regents56
, the dissenting judgment made by
Broussard J, held that there was no reason to deny recognising a patient’s economic
interest in their own body and its parts57
. He gave consideration to the notion of
enhancing trade in biological products, and how it could be promoted by recognition
of a proprietary right in an individual58
. Thus the argument can be put forward that by
allocating property rights, researchers and pharmaceutical companies involved in the
development and production of new drugs, would be further encouraged by the strong
investments resulting from the property rights in human body products59
.
Furthermore, a recognised property right in one’s body and its parts would be likely to
reduce a health professional to be influenced by any commercial gains that may result
from their patients removed tissue. They would then not only have a duty to inform
their patient of the benefits and dangers regarding any medical procedures, but would
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53
54
Criminal Code Act 1902 (WA) s288
55
56
57
58
59

also need to inform the patient of any conflicting commercial interests. In possessing
these property rights, a patient would then be able to dispose of their tissues after the
treatment, without concern for the possibility of researchers and pharmaceutical
companies profiting from the exploitation of their tissue.
Inconsistent for some, but not all, to have property in body parts
Another argument in favour of recognising property rights in one’s body and its parts
is the idea that it is inconsistent to recognise property rights for some, such as
pharmaceutical companies, but not for the individual.60
In his dissenting judgment
Broussard J criticised the majority for failing to consider the patients interest in their
own bodily materials when possible economic value could be obtained61
. Researchers
and pharmaceutical companies trade human body materials amongst each other,
sometimes with financial gains, and can receive patents for these materials as they
would from any other tradeable property62
. It therefore stands to reason under this
argument that an individual should receive the same benefits.
Legislation can remedy potential problems
Arguments mentioned earlier against the recognition of property rights in the human
body and its parts included the ability of an individual to engage in trade and
commerce, and that no person should have the freedom of ‘self destruction’. A simple
solution to these arguments, that this paper will go into more detail later on, would be
to enact legislation to deal with these issues. Though it may not be in the public
interest to ban all forms of commercial transactions, some limitations could be
imposed. In regards to the ‘self destruction’ argument, there are already specific
offences in place that deal with incidents relating to suicide and euthanasia, and there
would be no valid reason to allow the recognition of property rights in the human
body and its parts to overrule these already established laws.
As previously noted, the inability to perform particular activities in respect to a
‘thing’ does not indicate that you have no property right in it at all. The right to use or
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60
Macquarie Law Journal 165, 173
61
62
D.C., Georgetown University Press, 1996) 28-29

enjoy, alienate or exclude others from a thing do not all need to be present. It is
therefore arguable that whilst an individual would not have complete ‘ownership’,
they could claim ‘possession’ in their body or body products as an enforceable, but
limited, property right. Attaching limited rights to one’s own body and its parts
creates a strong basis for recognising property rights, particularly when viewed
alongside issues of commercialisation, and the impacts on research and development
of new medical technologies.
STATUTES AND REFORMS
The recognition of property law in the human body or its parts appears to have been
left to the combination of common law and existing legislation, such as the Human
Tissue and Transplant Act 1982 (WA) (HTT Act) of Western Australia. The HTT Act
administers the donation and transplantation of body products from both the living
and deceased. Whilst this legislation could be said to imply some notion that property
rights could exist in an individual, these rights would certainly be limited. The HTT
Act makes it illegal to sell body products,63
but a donor is allowed to donate non-
regenerative tissue if it is for the purpose of transplantation to another living person.64
This suggests that the donor, or senior next of kin, have the right to control the use of
the tissue, and hypothetically could be able to give the body tissue away, or, if
legislation did not make it illegal, be able to sell the body parts.
The Australian Law Reform Commission has attempted to address the need for a
‘uniform approach to the regulation of samples and information…to avoid
complexity, inconsistency and further fragmentation of privacy laws.65
In their
inquiry, they discussed the advantages and disadvantages of recognising property
rights in human tissue. Several submissions were made, including one approach
precluding individuals from holding property rights whilst allowing hospitals and
researchers to have these rights.66
Another suggested approach discussed the notion of
a bundle of rights, allowing individuals to hold limited property rights, and to form a
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63
Human Tissue and Transplant Act 1982 (WA) s 29
64
Human Tissue and Transplant Act 1982 (WA) s9
65
Australia, Report No 96 (2003) 20.1.
66

kind of lease agreement with doctors and researchers,67
whilst also preventing
commercial exploitation.68
However ultimately the inquiry considered that a property
approach would be too difficult to adopt, as its drawbacks outweighed its benefits,
and recommended that:
“…proprietary rights in preserved samples, which are currently enjoyed by
hospitals and others under the common law, should continue to be upheld on a case-
by-case basis. Legislation should not be enacted to confer full proprietary rights in
human genetic samples.”69
The approach of the common law, coupled with existing legislation, appears to give
limited property rights in limited circumstances. Under existing law, ‘the organisation
or person using the tissue must have lawful authority…’70
and ‘…that organisation
must apply some work or skill to the preservation of the sample…’71
. Despite this,
lack of any specific statutes that expressly recognises property rights in the human
body or its parts, and the judiciary’s unwillingness to apply property rights to an
individual appears to have left a need for new legislation to be considered.
LEGISLATIVE REFORM RECOMMENDATIONS
As mentioned previously, there have been several recommendations made to legislate
in respect to property in the human body and its parts. In considering regulatory
framework, property law principles must be carefully and consistently adapted in
order to deal with the infinite possibilities that are likely to arise from advancing
scientific and medical research in the future. It must be ensured that both ethical and
moral standards remain at a high level.
This paper proposes new legislation that is able to better define property rights in the
human body and its parts. Consideration must be given to the many different aspects
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67
68
69
Australia, Report No 96 (2003) 20-1
70
71

that are involved in recognising property law rights in one’s body and its parts. They
are as follows:
The separate treatment of the bodies of the living and the deceased
The treatment of a live person and their body is greatly different to that of a dead
human body. There are already specific offences relating to a corpse that protect it
from invasion, however with the recognition of property rights come circumstances
that must be considered. Next of kin, or beneficiaries under a will could be granted
the property rights of a human body and its parts. Possessing such authority over an
object such as a human body has some issues for society that must be taken into
consideration.
The living human body is a completely different object. The legislation must consider
the differences between adults, minors, mentally impaired persons, persons with other
disabilities, and persons of varying maturity.
Regenerative and non-regenerative tissue
The distinction between regenerative and non-regenerative body parts must be taken
into consideration. Different requirements must be analysed and applied to legislation,
as there is a significant difference between blood, which is easily removed from the
body, compared to an organ like the heart or liver which requires much more
specialised care and skill.
Collection, storage and disclosure of human tissue
Continuing on from the classification of human tissue above, the collection, storage
and disclosure of the tissue must be carefully considered. Persons must be authorised
to carry out the procedure of collecting the information, and the facility where it is to
be stored must also have authority to do so.
Persons authorised to hold property rights
As mentioned above, certain persons should be granted property rights in human body
material. Two separate classes should be distinguished being the individual whose
body or body parts are the subject matter, and other parties such as doctors,
researchers and pharmaceutical companies.

In regards to the individual, it is recommended that property rights within their own
body and its parts be granted, however these should be limited to rights of possession,
rather than full ownership.
The conditions placed on other parties would need to be stricter in order to ensure that
legal, moral and ethical justifications are maintained. As mentioned previously,
applying ‘work and skill’ to an object will, in the courts view, allow property rights to
be recognised in the person who applied it, and any subsequent person’s who acquire
that material legally would also hold such rights. This is one element of the proposed
legislation that would need to be included.
The second element of the proposed legislation to be applied to other parties in order
for property rights to be recognised should be that they were lawfully authorised in
obtaining the tissue. Informed consent acquired from the donor is one such option.
Authority to remove the tissue could also range from court orders, criminal
investigations and paternity testing.
Offences and damages
Specific offences relating to property in the human body would need to be formulated
that address more specifically offences relating to fraud, deception and commerce in
regards to one’s body and its parts.
With regards to fraud and deception, we previously discussed informed consent and
lawful authority for the removal of body parts. In the event that such materials are
obtained illegally, legislation would be required to define the crime committed and
the appropriate punishment. Awarding of damages would likely be a difficult task to
define. Specific performance would be an unlikely remedy, as would the conversion
of human tissue returned to its donor.
In regards to commerce in the human body, it is recommended that an individual has
no commercial right in their own body or it’s parts. They could perhaps be reimbursed
for any expenses that they reasonably incur in donating any of their body tissue.
Other parties that are commercially involved in human bodies and their parts should
be able to continue in this practice, so long as they obtain the materials lawfully. This
list is not exhaustive, and there are many factors, such as existing legislation and
concerns of society, that must be taken into consideration when introducing any new
legislation of this kind.

CONCLUSION
It seems that the arguments against recognising property rights in one’s body and its
parts, are outweighed by the arguments in favour of recognising such rights.
The concept of property and the approach of the common law show that the human
body is capable of being classed as property. Similarly to the case of Moore v
Regents, Australian courts are willing to allow a body or body product to be classed
as property, however they are yet to recognise such rights in an individual. Slow
developments in the law could see situations dealt with inconsistently, and whilst
common law is usually quicker to deal with new and unique situations, an issue such
as property rights in the human body is a topic that needs lengthy and thorough debate
and seems best left to legislators.
Tort law protecting autonomy of the individual, the possibilities of the human body
and its parts being treated as another commodity on the market, and lesser quality
human parts available for research and transplantation, all have some merit to them.
However, the negative impact on research and development of new technologies in
the medical sphere, the inconsistency with which the common law treats the
individual compared to doctors, researchers and pharmaceutical companies, and the
ability of new legislation to overcome potential ethical, moral and legal problems,
seems to leave behind any argument against recognising property rights in one’s body
and its parts.
Property law is the most appropriate system to deal with the infinite medical and
technological advancements in the human body that society will be faced with in the
future.

BIBLIOGRAPHY
ARTICLES/BOOKS/REPORTS
Australian Law Reform Commission, Essentially Yours: The Protection of Human
Genetic Information in Australia, Report No 96 (2003)
ed, Australia, Butterworths,2008)
Celia Hammond, ‘Property rights in Human Corpses and Human Tissue: The Position
in Western Australia’ (2002) 4 The University of Notre Dame Australia Law Review
99
E. Richard Gold, Body Parts: Property Rights and the Ownership of Human
Biological Materials (Washington, D.C., Georgetown University Press, 1996) 43
Loane Skene, Arguments Against People Legally ‘Owning’ their own Bodies, Body
parts and Tissue (2002) 2 Macquarie Law Journal 165, 167
Lyria Bennet Moses, ‘The Applicability of Property Law in New Contexts: From
Cells to Cyberspace’ (2008) 30 Sydney Law Review 652
Matthew J Lynch, Property in Human Gametic Material and the New Reproductive
Technologies (1999) 6 JLM 348 at 349
CASES
AB v Attorney-General for the State of Victoria [2005] VSC 180
Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971)
17 FLR 141
Pecar v National Australia Trustees Ltd and Anor (unreported) NSW Supreme Court
(no518 of 1996) (27 November 1996)
S v Minister for Health (WA) [2008] WASC 262
Y v Austin Health [2005] VSC 427
Yanner v Eaton (1999) 201 CLR 351

LEGISLATION
Criminal Code Act 1902 (WA)
Human Tissue and Transplant Act 1982 (WA) s 29
Sale of Goods Act 1895 (WA)
Supreme Court Rules 1970 (NSW)
Supreme Court Rules 1971 (WA)
OTHER SOURCES
Cancer Council Australia, Facts and Figures (2011)
http://www.cancer.org.au/Newsmedia/factsfigures.htm
Transplant Australia, The Benefits (2011) http://www.transplant.org.au/The-
Benefits.html
Women’s International Centre, Women’s History in America (1994)
http://www.wic.org/misc/history.htm

Recognising Property Rights In One's Body And Its Parts

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