New Zealand Law Students Journal
Last Updated: 27 May 2014
IS YOUR BODY YOURS?
Man cannot dispose over himself because he is not a thing; he is
not his own property; to say that he is would be self-contradictory;
for in so
far as he is a person he is a subject in whom the ownership of things can be
vested, and if he were his own property, he
would be a thing over which he could
have ownership. But a person cannot be a property and so cannot be a
can be owned, for it is impossible to be a person and a
thing, the proprietor and the property.
Immanuel Kant Lectures on Ethics (1780).1
Some things, though corporeal, cannot be owned at all. Immanuel
Kant, above, suggested that the human body could not be
owned. In New Zealand,
the law remains unclear on whether property rights can vest in the human body,
or in body parts. Whilst explicit
authority for the proposition is limited,
since the early 17th century the common law has regarded dead bodies as being
nullius in bonis (in the legal ownership of nobody).2 Under
this “no property rule”, human bodies cannot be regarded as
property and cannot be stolen.3 Recent advancements in medical
science, and particularly in the anatomical field, have resulted in human bodies
acquiring a commercial
utility. The possibility of unauthorised has seen the
doctrine re-emerge, with growing importance, from two centuries of
It is this author’s opinion that recent developments in medical science
* LLB(Hons)/BCom (in progress), The University of Otago.
1 Immanuel Kant Lectures on Ethics (Cambridge University Press, Cambridge,
2001) at 482.
2 PDG Skegg “Human Corpses, Medical Specimens and the Law of
Property” (1975) Anglo-Am LR 412.
3 This article will examine property rights in dead
bodies. For an examination of property rights in living human bodies
see generally ATH Smith “Stealing the Living Body and its
Parts” (1976) Crim LR 622–627 and Bernard Dickens
“Living tissue and organ donors and property law: More on
Moore” (1992) 8 Journal of Contemporary Health Law and Policy
have outpaced the legal position of the no-property rule in New
Zealand, creating a lacuna in the criminal law whereby corpses
have no legal
protection prior to burial or cremation.4 This article examines the
historical development of the no-property rule; the current criminal domestic
framework and the gaps therein;
before finally proposing suggested amendments
to current legislation that could modernize the law in light of medical
A. The Common Law Rule of “No Property” in Human Bodies
A historical outline of the origin and rationale for the “no
property” rule is necessary to provide a foundation
its on-going relevance can be assessed. Although New Zealand courts are not
legally bound by the “no property”
rule (it having never been
incorporated by a domestic court), it is a well-established rule and
unlikely to be deviated
No other rule of law can claim such a macabre history as the no
property rule. Slavers, grave robbers, grieving widows,
freak show exhibitors
and harvesters of body parts have all prominently featured. The rule stems
from early legal writings
dating back to the 17th century. 6
During this period the establishment of Christianity in England
favoured burial in consecrated grounds, and
so the ecclesiastical
courts assumed exclusive jurisdiction over corpses, applying canon
principles as the substantive
law. 7 As a result, the common
law of England, formed in non-ecclesiastical courts, did not have the
opportunity to develop a set of
comprehensive rules on dead
4 New Zealand law already provides for the protection of corpses upon burial through s 150 of the Crimes Act 1961, namely “misconduct in respect of human remains”.
5 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [218.03]; PDG Skegg “The Removal and Retention of Cadaveric Body Parts: Does the Law Require Parental Consent?”  OtaLawRw 8; (2003) 10 Otago LR 425.
6 Skegg “Human Corpses, Medical Specimens and the Law of Property”,
above n 2, at 412. The author notes a passage in Sir Edward Coke The Third Part of the Institutes of the Laws of England Concerning High Treason, and Other Pleas of the Crown and Criminal Causes (W Clarke and Sons, London, 1817) at
203, where Sir Coke wrote: “the burial of the cadaver is nullius in bonis, and belongs to the Ecclesiastical cognizance”.
7 At 412.
bodies. 8 It was not until the middle of the 19th
century that the common law effectively commenced jurisdiction over dead
bodies, partly due to the increase in the practice of burial in
The rationale for the no property rule is not easy to discern, but generally commentators agree that it is based on a misunderstanding of earlier authority dealing with the unlawful removal of corpses from graves.10 Policy justifications spouted by courts since point to the “need for speedy burial” 11 of the dead to avoid prolonged natural decay and prevent any sacrileges to the body after death as validating the rule.12
This somewhat anomalous status of the law is clearly summarised by
Blackstone who said: 13
[t]hough the heir has a property interest in the monuments and escutcheons of
his ancestors, yet he has none in their bodies or ashes,
nor can he bring any
civil action against such an indecently at least, if not impiously, violate
and disturb their remains,
when dead and buried.
This proposition articulated a rule that lasted for more than 200 years and
has recently been re-affirmed by the English Court of
8 Phillips v Montreal General Hospital (1908) XIV La Revue Legale 159.
9 PDG Skegg “Medical Use of Corpse and the “no property” Rule” (1992)
32 Med Sci Law 311. See also R v Lynn  EngR 146; 100 ER 394 (1788); R v Sharpe
(1857) Dears & Bells 160 at 163 EngR 24; , 169 ER 959 at 960; R v Price (1884) 12 QB
247 at 252; and Foster v Dodd (1868) QB 67 at 77.
10 Paul Mathews “The Man of Property” (1995) 3 Med L R 251 at 253; Roger S Magnusson “Proprietary rights in human tissue” in Norman Palmer and Ewan McKendrick (eds) Interests in Goods (Lloyd’s Commercial Law Library, London, 1993) at 237–266; Skegg “Human Corpses, Medical Specimens and the Law of Property”, above n 2, at 416.
11 Doodeward v Spence  HCA 45; (1908) 6 CLR 406 (HCA) at 410–414 per Higgins J.
12 Coke, above n 6, at 213. The body was seen as the temple of the Holy Ghost and it would be sacrilegious to do anything other than bury it and let it remain buried. See, for example, In Re Estate of Johnson 7 N Y S 2d 81 (Sur Ct 1938).
13 William Blackstone Commentaries on the Laws of England (The University of
Chicago Press, Chicago, 1979) vol 2 at 429.
14 The principle has been affirmed in R v Kelly  QB 621 per Rose LJ at
631: “Our law recognises no property in a corpse”; AB v
What can be seen from the eclectic mass of literature is that the rule is founded upon dubious obiter dicta, 15 on grounds that were “ambiguously decided”,16 and originate from “quirky fact situations”.17
The general consensus amongst academics is that it is questionable
whether any public policy reasons for preserving the
rule remain. As Price
put it: 18
[these obiter remarks] are ghosts of the past, statements which cannot stand
in the light of modern ideas, being remnants of the superstition
with which less
advanced communities surround the manifestation of death.
It is clear that the principle is now overdue for reappraisal in light of
modern scientific advancements.
B. The Concept of “Property” and Human Bodies
To understand whether corpses are capable of being owned, a brief
examination of the concept of property is required. In legal
terms, the concept
of “property” refers not only to the item of property itself.
Rather, it refers to a protected
set of interests that entities (such as
people and corporate insitutions) may have in material objects, places, and
Those protected interests serve to regulate, govern and define
relationships amongst people with respect to those
15 Miner v Canadian Pacific Railway Co (1910) 15 WWR 161 at 166–168; Robertson (ed) Adams on Criminal Law, above n 5, at [218.02].
16 Kenyon Mason and Graeme Laurie “Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey” (2001) 64
MLR 710 at 713.
17 Debra Mortimer “Proprietary Rights in Body Parts: The Relevance of
Moore’s Case in Australia” (1993) 18 Mon LR 217 at 217.
18 TW Price “Legal rights and duties in regard to dead
bodies, post-mortems, and dissections” (1951) 68 South African Law
Journal 403 at 420. See also Griffith CJ in Doodeward, above n 11, at
412: “I do not myself accept the dogma of the verbal inerrancy of ancient
text writers. Indeed, equally respectable
authority, and of equal antiquity,
may be cited for establishing as a matter of law the reality of
objects, places, and ideas.19 It is possible that this broad
concept of property may encompass human bodies as there is no express provision
in either the Property Law Act 200720 or the Crimes
In law, property interests are often seen to protect value. 22
Consequently, a worthless object, such as a dead leaf fallen from a tree, is
not amendable to theft since, having no value, it is
not governed by the
criteria of ownership or possession.
Historically, before anatomy emerged as a branch of medical practice, human
bodies were not regarded as property, as they had neither
use nor commercial
value. The emergence of anatomical examinations as a branch of medicine made
cadavers profoundly useful
for medical training in the act of
surgery.23 With a newfound value, Justice Willes’ observations
on the relationship of human bodies and property rights, whilst made in
remain on point: 24
[I]n modern times the requirements of science are larger than
formerly, and when they are so extensive it seems to
me that we ought not to
entertain any prejudice against the obtaining of dead bodies for the laudable
purpose of dissection but we
ought to look at the matter with a view to
Modern advancements in biotechnology have given further commercial utility to
human bodies than that envisaged even in the time of
19 Mathews, above n 10, at 253.
20 The Property Law Act 2007, s 5, presently clarifies property, inter alia, as “everything that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible property”.
21 The Crimes Act 1961, s 2, broadly defines property as including “...real
and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest”.
22 Tom Bennion and others New Zealand Land Law (2nd ed, Brookers,
Wellington, 2009) at ch 1.
23 Suzanne M Shultz Body Snatching: The Robbing of Graves for the Education of Physicians (McFarland and Co, North Carolina, 1992). Shultz examines grave-robbing activities in 19th century England that took place to satisfy the demands of cadavers for medical evaluation.
24 R v Feist  EngR 86; (1858) 169 ER 1132 at 1135 per Willes
Willes, eroding the no property rule through a developing possessory
right.25 These advances have resulted in the ability to remove, store
and preserve indefinitely human organs and body parts. This has enabled
scientists to use parts of the human body for transplant operations;
artistic casts; fertility treatment; and for researching
techniques for genetic disorders. Thus, in the present day, human
bodies have utility and a pecuniary
value as important raw materials in
In light of this marked change the question must be raised whether the no
property rule should be rejected, or at any rate modified,
to make way for the
recognition of property interests in human corpses.
C. Evaluation of the “No Property” Rule
The ambit of the no property rule has recently been reduced with the
introduction of a number of statutory exceptions providing
in human bodies, including in the Crimes Act 1961,26 Coroners Act
2006,27 Human Tissue Act 2008,28 and the Code of
Health and Disability Services Consumers’ Rights 1996.29 The
provisions have the effect of expressly overriding the no property rule
in a number of
25 Dobson v North Tyneside Health Authority  EWCA Civ 1301;  4 All ER 474 (CA), approving Doodeward, above n 11, where an individual acquires the right to retain possession of a body if it has acquired attributes differentiating it from a mere corpse awaiting burial.
26 Section 150 creates an offence for any person to neglect to perform duties
in regard to human bodies, or improperly or indecently interfered with any dead body.
27 Section 19 provides that a coroner has an exclusive right to custody of the body for the purpose of a post-mortem examination for the duration of that period.
28 Part 2, “Human Tissue”, allows these institutions a right of possession to body parts in particular medical purposes, whilst making it a criminal offence for them to be in possession when the procedures in the Act have not been followed. However, the Act does not directly address the question of whether a person owns bodily material once it has been removed. The Act’s regulation of the use of bodily material focuses on the requirement for consent, rather than the granting (or affirming) of property rights in removed material.
29 Right 7(9) provides a right for every consumer to make a decision about the
return or disposal of any body part or bodily substance.
specific instances. This trend raises the issue of whether there remains any
place for the rule at all.30
It can be argued that the development of the exceptions to the no
property rule themselves provide justification for
its retention. Skegg
notes that the qualifications of the rule have had the effect of
strengthening the rule itself,
for they have removed some of the
pressures for change that may have otherwise existed.31 Indeed, as
one commentator hypothesised:32
Overturning the [“no property”] rule would deprive the
Common Law and statutory exceptions of their raison d’etre and
make nonsense of them.
Repudiating this rule has the potential to start a domino-effect, casting
the law into a state of uncertainty.
The recognition of possessory property rights in human bodies, in
certain circumstances, would create legal certainty, reducing
the vacuum under
which the biomedical and scientific community is presently acting.33
As noted by the Supreme Court of Western Australia in the context of a
paternity suit for DNA analysis of the deceased’s
tissue, “it defies
reason to not regard [the body tissue] as property ... There is no purpose to be
served in ignoring physical
reality”.34 For the law to serve
society as an instrument of social engineering it must be able
30 The exceptions based in common law noted in Robertson (ed) Adams on Criminal Law, above n 5, at [218.03], are limited to (i) rights of the personal representatives of the deceased to the custody of the body for burial; (ii) regenerative tissue exceptions where property vests in hair, urine and blood; and (iii) the Doodeward work and skill exception (see “Reform” below for further detail).
31 Skegg “Human Corpses, Medical Specimens and the Law of Property”,
above n 2, at 420.
32 Glanville Williams Textbook of Criminal Law (2nd ed, Stevens, London, 1983)
33 Jennifer Ngahooro and Grant Gillet “Over my dead body: the ethics of organ donation in New Zealand” (10 September 2004) 117 New Zealand Medical Journal <www.journal.nzma.org.nz>.
34 Rooche v Douglas (2000) WASC 146 at 148.
respond meaningfully to changing socio-economic dynamics.35 As
was noted in Kelly “the common law does not stand
still”.36 Indeed, as the law has already shown adaptability
and flexibility through acknowledging property interests in human bodies
in special circumstances, a property interest in all instances would
be a natural extension.
A weighty argument against the recognition of property rights in the
human body is that it would start a slide down a slippery
slope that could
result in devaluation, objectification and commodification of
life.37 Academics point to the ethical dilemma that would arise in
having commercial dealings in human bodies as the most decisive argument
against rejecting the principle. The advancements in biomedical science ensure
that “granting property rights in human
bodies inevitabl[y] draws
them into the area of commercial dealing”.38 The
thought of bodies as property being treated the same way as other
chattels is morally repulsive to many. If
property rights were to be
vested in human bodies, then seemingly malevolent hypothetical scenarios could
[I]f my relative’s body is mine ... I may do with my property as
I wish. I may elect to sell her component parts in public auction. I
may donate her for
display as a plasatinated exhibit.
The argument is that the fallout of rejecting the “no property” rule would be the creation of a market dealing in human bodies. In short, it is not turning bodies into property that people are afraid of; it is turning people into commodities.40 However, it can be observed that the “no
35 Moore v Regents of University of California 51 Cal 3d 120 (1990), 793 P 2d 479 at
36 R v Kelly, above n 14, at 631C per Rose LJ.
37 Bryn Williams “Concepts of Personhood and the Commodification of the Body” (1999) 7 Health Law Review 11 at 12; Andrew Grubb “‘I, Me, Mine’: Bodies, Parts and Property” (1998) 3 Med L Int 299 at 313; Skegg “Medical Use of Corpse and the ‘No-Property’ Rule”, above n 9, at 317.
38 Bettina Brandt “‘Body Snatching’ in Contemporary Aotearoa/New
Zealand: A Legal Conflict Between Cultures” (LLM thesis, University of
Otago, 2009) at 110.
39 David C Jackson Principles of Property Law (Law Book Co, Sydney, 1967) at
40 Mathews, above n 10, at 273.
property” rule has not prevented such sales from occurring (human skeletons remain regular purchase by medical students, as does the acquisition of human remains by museums), and it must be questioned whether reforming the rule would actually change real world practices.
41 This commodification argument has been strongly objected to by
academics, who contend that such a scenario could be circumvented if
Parliament were to place strict constraints on the exchange and
use of human
The no property rule can be viewed as a relic of an age in
which corpses were of very limited use and held a correspondingly
value. As it is, the principle leaves corpses less protected than objects that
are the subject of property rights.
Reform of the rule would be regarded
as keeping pace with the gradual evolution of the common law’s position
bodies, as well as with the greatly increased importance of bodies for
D. Avenues for Reform
There are two avenues for reforming the no property rule, neither of which
involves a complete overhaul. Given the arguments raised
in its evaluation, on
balance the rule should not be discarded altogether. An absolute rejection would
effectively create legal uncertainty
and would be extremely difficult to
implement.43 Instead, reform should take the form of
1. Possession acquisition through “work and skill”
The first avenue is to expressly recognise and expand the scope of possessory
rights in remains that are the subject of work and skill.
It has been argued
that since possession is one of the forms of ownership, such limited rights as
may be had in body parts or a
41 Skegg “Medical Use of Corpse and the ‘No-Property’ Rule”, above n 9, at
42 Remigius Nwabueze “Biotechnology and the New Property Regime in
Human Bodies and Body Parts” (2002) 24 Loy LA Intl & Comp LR 19 at
43 For a full discussion on the implications of a
complete rejection see Thomas O’Carroll “Over my dead body:
Recognizing property rights in corpses” (1996) 29 Journal of Health and
Hospital Law 238.
amount to property rights, available in rem, enforceable
against third parties.44 If such limited property rights were
available, a corpse could be regarded as property, albeit property that
of being owned. This suggestion finds support in the High
Court of Australia decision Doodeward v Spence, where the Court
allowed an action in detinue for the return of a stillborn two-headed
child.45 Griffiths CJ expressed the view that: 46
[W]hen 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 it has
acquired some attributes differentiating it from a mere corpse awaiting
burial, he acquires a right to retain
possession of it.
Combined, the work performed in preserving the foetus and the
pecuniary value acquired ensured that the body was
property. This principle has since been applied in R v Kelly47
where the English Court of Appeal found that an assorted number of body
parts, having been dissected, preserved and exhibited for
teaching purposes, had
acquired sufficient attributes to be regarded as “property”
under the Theft Act 1968.48 However, in deciding this, Rose LJ was
adamant that the general no property rule was still “good law” and
could only be
changed by Parliament.49
This extension to the no property rule is not without difficulties. It
would be naïve to suggest that it is possible to
distinguish between all
the component parts of the human body that are useful or valuable and those
that are not, nor indeed
what degree of work is required to
44 Dominique de Stoop “The Law in Australia Relating to Transplantation of
Organs from Cadavers” (1974) 48 ALJ 21 at 22.
45 In Doodeward, above n 11, the body was preserved in spirits for some 40 years before the appellant purchased it with a view of exhibiting it at fairgrounds.
46 Doodeward, above n 11, at 414.
47 R v Kelly, above n 14, at 632.
48 Muireann Quigley “Property: the Future of Human Tissue?” (2009) 17 Med
LR 457 at 459–460; Yearworth v North Bristol NHS Trust  EWCA Civ
37 at 156.
49 R v Kelly, above n 14, at 612. As Lucas CJ noted in Moore, above n 35, at
210, it is not the Court’s role to make such a change, indeed “sometimes...
the most important thing that we can do is to not do anything at
transform the body into an item of property. 50 Scientific
research may require access to a variety of tissue substances ranging from the
human brain or heart to surgical waste;
the range constantly expanding with
further developments in the field. Furthermore, some samples,
for biomedical research, may have no intrinsic commercial
worth at all. To deny legal status to such material for a lack of commercial
utility would seem unduly inhibiting and contrary to the development of
scientific and biomedical projects whose very success is
heavily dependent on
human body samples. To complicate matters further, it is difficult to
conceive a bright-line
from which property rights would first be
recognised.51 For example, questions such as when property rights
arise in an unborn human embryo or in a body part surgically removed and
assigned for transplant would have to be tackled. Whilst it is certainly
debatable that such items deserve the protection
that the criminal law
can offer, finding a practical mechanism is no easy feat.
2. Amending the term “property” in the Crimes Act 1961
The second avenue is to amend the definition of “property” within
the Crimes Act 1961. Skegg hypothesises that “such
an approach is more in
keeping with the common law tradition that is the complete rejection of a
long-accepted rule”. 52 Creating a distinction between
buried and unburied corpses, with property rights vesting in the latter, may
serve as an effective
vehicle for statutory change.53 Human bodies
that are not buried would acquire property rights through possession vested in
the executor. Admittedly, this notion
lacks support of case law. If adopted,
however, it would solve many of the issues that the rule faces in light of
whilst also leaving the initial justifications
50 Jennifer Lavoie “Ownership of Human Tissue: Life after Moore”  75
Va L Rev 1363 at 1383.
51 AP Simester and others Simester and Sullivan’s Criminal Law: Theory and
Doctrine (4th ed, 2010, Hart Publishing, Oregon) at 488.
52 Skegg “Medical Use of Corpse and the ‘No-Property’ Rule”, above n 9, at
53 If property rights were to vest in buried corpses, the
Burial and Cremation Act 1964 and the Administration Act 1969 would
need to be further amended.
its existence undisturbed. 54 This proposition finds
support under Scottish law.55 The only practical way that the
Crimes Act could be amended is through including “human bodies or parts
under the provision of “Matters of ownership” in s
218.56 If a human body were to be the subject of property
rights, vested in an executor or similar such person,57 then all
unauthorised interferences with corpses prior to burial could be
punishable through provisions concerning crimes
against property in Part 10
of the Crimes Act.
Of the two options, amending the Crimes Act definition of property to include
“unburied corpses” appears to have the
greatest potential to
mitigate the gap in the law. It avoids the question of how much work and skill
is required before a
body becomes subject to a property interest and
would provide a clear-cut rule. If further changes were needed, allowing
corpses to become the subject of property through the application of work
and skill could be considered.
The world is now a vastly different place from when the “no
property” rule was first accepted. In a secular New Zealand,
ecclesiastical influence that once held sway over England is no longer
universally perceived as fundamental in the
burial of a corpse. In
addition, the public health concerns that initially provided a foundation for
the rule have been alleviated.
Significant advances in biomedical science
not only assists in the understanding of health and safety risks in dealing
human bodies, but have enabled us to cope with and minimise these risks.
These advances have enabled us to use human bodies in
a myriad of ways that
could not have been contemplated three or even
54 Skegg “Medical Use of Corpse and the ‘No-Property’ Rule”, above n 9, at
55 GH Gordon Criminal Law of Scotland (W Green Publishing, Edinburgh,
1967) at 430–431. The Scottish Court of Justice has supported the view that in Scot’s law a corpse is the subject of property (and can therefore be stolen) until it is disposed of: see Dewar v HM Advocate 1945 JC 5 at 11–14.
56 Amending the Crimes Act 1961, s 2 would alter the definition of property for the entire Act, whereas amending s 218 would only alter the definition for criminal acts in relation to property under s 10.
57 The Administration Act 1969 would need to be amended to provide for a
temporal possessory right.
four generations ago. In short, the world has changed so much that “all
the societal pressures which a century ago pointed away from lawfully
possessing and using human tissue now point towards it”
.58 It is this author’s opinion that the best method for change
would be to amend the current provisions of the Crimes Act to include
“unburied corpse” in the definition of property. Such a change would
modernise the rule, bringing it in touch with the
significant scientific and
societal changes that have occurred over the last two hundred
58 Mathews, above n 10, at 256.