By Hasan Almusawi, LLB Law
The question of whether we are truly the proprietors of our bodies has been a surprisingly obscure one. While it is easy to assume that we obviously own our own bodies because we carry them throughout the entirety of our lives, the law surrounding the issue has not been so straightforward. Medical and scientific developments have led to inquiries over whether research institutions can be granted intellectual property rights over cells and DNA or if one can sell parts of one’s own body.
The law in the UK has, as well as in other jurisdictions, has not developed a consistent approach to establishing the legal status of the human body. Courts have traditionally avoided making any judgements that may entail human bodies as proprietary rights. The legal repercussions of such an assertion may well lead to the subsequent authorisation of prostitution, organ selling as well as assisted suicide – which explains the judicial hesitancy.
The landmark case of Yearworth v North Bristol NHS Trust in 2009 presents somewhat of a turnaround to the previous position. The Court of Appeal recognised the claimants’ proprietary rights over their own sperm. Whilst this is an important step towards recognising proprietary interest in our bodies, its value is debatable.
The Yearworth case has been criticised for seemingly rushing its decision to find a property rights over the sperm in question, without identifying an underlying principle upon which this right is founded. By finding the property right without a firm justification, the court took something of a leap into the unknown. The decision’s lack of foundation arguably makes Yearworth an undesirable precedent. We are left wondering whether the property paradigm has been extended to gametes only or whether it is applicable to other reproductive bodily materials or more widely to non-reproductive organs and tissues.
The American case of Moore v Regents of the University of California of 1990 presented new challenges to proprietary interest in our bodies because of scientific advances. Researchers used Moore’s cell line to obtain a patent which they sold to a pharmaceutical company for $15,000,000. Moore’s claim that the cell line was his property was rejected as the place of cell’s extraction, his spleen, was declared not his property. Property right would have entitled him to a share of proceed. The law therefore leaves us in an unsatisfactory position whereby, one does not have a property interest on one’s own body, but another person has the ability to generate a property right in products made from one’s body.
As science and medicine continues to progress, the greater the need for a robust legal base which provides a clear authority on whether we are the proprietors of our bodies or not. As the current position is just as confusing as it is misleading.