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Clere, Almiro --- "Is your body yours?" [2012] NZLawStuJl 6; (2012) 2 NZLSJ 802

Last Updated: 27 May 2014

IS YOUR BODY YOURS?

ALMIRO CLERE^*

Introduction

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 thing which 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 dormancy.

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 73.

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 advancements.

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 upon which 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 from nowadays.⁵

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?” [2003] 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 unconsecrated grounds.⁹

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 Appeal.¹⁴

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 [1730] EngR 146; 100 ER 394 (1788); R v Sharpe

(1857) Dears & Bells 160 at 163[1856] 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 [1908] 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 [1998] QB 621 per Rose LJ at

631: “Our law recognises no property in a corpse”; AB v Leeds Teaching

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 ideas. Those protected interests serve to regulate, govern and define relationships amongst people with respect to those material

Hospital NHS Trust [2004] EWHC 644 (QB) at [135] per Gage J: “the traditional rule has been that the human body cannot be property”; and recently in Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 at [31].

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 witchcraft”.

objects, places, and ideas.¹⁹ It is possible that this broad concept of property may encompass human bodies as there is no express provision stating otherwise in either the Property Law Act 2007²⁰ or the Crimes Act 1961.²¹

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 1858, 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 utility.

Modern advancements in biotechnology have given further commercial utility to human bodies than that envisaged even in the time of Justice

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 [1858] EngR 86; (1858) 169 ER 1132 at 1135 per Willes J.}

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 predictive testing techniques for genetic disorders. Thus, in the present day, human bodies have utility and a pecuniary value as important raw materials in biomedical research.

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 property rights 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 [1996] EWCA Civ 1301; [1996] 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 to

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)

at 217.

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 arise:³⁹

[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

507.

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

6–7.

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 remains.⁴²

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 negligible 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 on human bodies, as well as with the greatly increased importance of bodies for biomedical purposes.

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 modification.

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 corpse nonetheless

⁴¹ Skegg “Medical Use of Corpse and the ‘No-Property’ Rule”, above n 9, at

318.

⁴² Remigius Nwabueze “Biotechnology and the New Property Regime in

Human Bodies and Body Parts” (2002) 24 Loy LA Intl & Comp LR 19 at

54.

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 is incapable 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 regarded as 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 [2009] 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 all”.

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, although valuable 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 scientific advancements, whilst also leaving the initial justifications for

⁵⁰ Jennifer Lavoie “Ownership of Human Tissue: Life after Moore” [1989] 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

315.

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 thereof” 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.

Conclusion

The world is now a vastly different place from when the “no property” rule was first accepted. In a secular New Zealand, the 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 with 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

315.

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 years.

⁵⁸ Mathews, above n 10, at 256.