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Skene, Loane --- "Proprietary rights in human bodily material: recent developments" [2016] OtaLawFS 24; Law, ethics, and medicine: essays in honour of Peter Skegg 52

Last Updated: 31 May 2019

Loane Skene*

ABSTRACT

This chapter considers recent developments in the law relating to the legal status of human bodily material and proprietary interests to which it may be subject. This issue was considered by Professor Skegg in a journal article published as early as 1975 and he revisited it in later articles. He questioned the rule that human organs and tissue were not property and therefore not protected by property law, though he later accepted that the ‘no property’ rule may now be so entrenched that it is not possible for even the higher courts to abolish it, even if they were so inclined.

The chapter examines the case law in England and Australia in which limited exceptions to the ‘no property’ rule have gradually been recognised by the courts. The most recent cases have concerned the storage and use of semen removed for infertility treatment. In an English case in 2009, men who had stored their semen before undergoing chemotherapy were held to be entitled to compensation when it was negligently destroyed; the court said that they had a limited proprietary right in it that would found a bailment (Jonathan Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1). In later cases in Australia, courts have had to decide whether a man’s proprietary right in his stored semen could be transferred to his widow after his death so she could have their child posthumously. Under Australian law, people have been able to acquire proprietary rights in another person’s excised bodily material by undertaking ‘work or skill’ on it (Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406); but ‘inheritance’ is a different matter. Nevertheless, in 2010, a justice of the Supreme Court of Queensland accepted, out of sympathy for a widow’s loss of reproductive chances, her argument that she was entitled to possession of her husband’s stored semen because she was the personal representative and principal beneficiary of his estate (Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118). In another Australian case in 2011, the court held that a widow was entitled to possession of her deceased husband’s semen even though it was removed after his death under a court order, so it could not be part of his estate (Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478). In both of these cases, as in Yearworth, the judges acknowledged the lack of logic of the so-called ‘Doodeward exception’ to the ‘no property in human tissue’ rule and discussed the application of principles of bailment.

The chapter argues that, as Professor Skegg predicted in 1975, the courts’ decisions in this area have been piecemeal and even the higher courts have been reluctant to undertake a wider review of underlying principles of property law. They have limited their judgments to the principles necessary to decide the cases before them. The same is true of other areas of law-making – law reform reports, which are limited by their terms of reference; legislation, which is enacted in response to specific issues; and ethical guidelines which are also limited to specific issues. It seems that only the academic community has the will and the resources to undertake the gargantuan task of wide-scope review and analysis, following in the tradition of Professor Skegg.

INTRODUCTION

In 1975, Professor Skegg published an article on the law of property in relation to human corpses and medical specimens.1 It was one of the first academic articles on this topic, appearing even before the influential Report of the Australian Law Reform Commission (ALRC) on Human Tissue Transplants in 1977,2 which was the basis for the legislation in all Australian jurisdictions that enabled organ and tissue transplants to be undertaken without doubts about legal issues.

Professor Skegg’s article, in true scholarly style, traced the development and application of the ‘no property’ rule, the legal principle that there could be no property interests in a human corpse or body parts. He referred to Coke’s Institutes, first published in 1644, and the developments in the English common law from the eighteenth century, noting “how slight [was] the authority in favour of the no property rule”.3 Also, although the courts had “established a considerable measure of control over corpses”4 in the cases that had come before them, they had avoided a direct challenge to the traditional view of the ‘no property’ rule. Instead of reversing the earlier line of authority, and holding that a corpse could be the subject of property, they simply qualified the ‘no property’ rule in ways that enabled them to deal fairly with the problem before them. Scots law was

* Melbourne Law School.
1 PDG Skegg “Human corpses, medical specimens and the law of property” (1975) 4 Anglo-

Am LR 412. Professor Skegg’s later articles on related topics include PDG Skegg “Criminal liability for the unauthorised use of corpses for medical education and research” (1992) 32(1) Med Sci Law 51; and PDG Skegg “Medical uses of corpses and the ‘no property’ rule” (1992) 32(4) Med Sci Law 311.

  1. Human Tissue Transplants (ALRC Report 7) (Australian Law Reform Commission, November
    1977).

3 Skegg “Human corpses, medical specimens and the law of property”, above n 1, at 417.
4 At 413.

different, he said. It recognised that a corpse was property, and that principle directly protected a corpse from being tampered with, through the law of theft and trespass to goods.5 Skegg said that the English law should take the same approach, questioning whether there were good reasons for the ‘no property’ rule (though in a later paper he accepted that the rule was so entrenched that it would be difficult to change it).6

With careful analysis and a broad overview, Skegg identified the issues in legally protecting human bodily material. He understood their importance and, with striking prescience, observed that “if the no property rule [relating to human corpses] applies also to parts removed from corpses, then many medical specimens are to a greater or lesser extent beyond legal control”.7 He noted the tendency of courts to deal only with the cases before them and not to examine underlying legal principles from a broader perspective, or to reform the law. He proposed the way forward: the law should recognise property interests in bodily material and the higher courts should lead the way.

This is still the Scots law, though it will not be discussed in this paper. It is heartily supported by Scots writers; see, for example, the book review by Jonathan Brown, University of Strathclyde, of Imogen Goold, Kate Greasley, Jonathan Herring and Loane Skene (eds) Persons, Parts and Property. How Should We Regulate Human Tissue in the 21st Century? (Hart Publishing, Oxford, 2014): Med L Rev Advance Access published May 6, 2015; doi: 10.1093/medlaw/fwv015; See also the forthcoming book chapter by Kenneth Reid “Body parts and property” in Andrew Simpson, Roderick Paisley and Douglas Bain (eds) Northern Lights: Essays in Private Law in Honour of David Carey Miller (Aberdeen University Press, Aberdeen, 2016) (forthcoming) currently Edinburgh School of Law Research Paper No. 2015/25, available at SSRN <http:// dx.doi.org/10.2139/ssrn.2644303> . This chapter apparently considers “doctrinal and policy considerations ... including (among the former) the division of things deriving from Roman law, the boundary between property rights and personality rights, the distinction between donation and abandonment, and the doctrines of occupatio and specificatio”. Justice James Edelman also examined Roman law principles in a plenary presentation to the Australian Association of Bioethics and Health Law Conference “Property rights to our bodies and their products” (Plenary Presentation, University of Western Australia, Perth, 3 October 2014). PDG Skegg “Medical uses of corpses and the ‘no property’ rule” (1992) 32(4) Med Sci Law 311. New Zealand Professor Nicola Peart says that “The Supreme Court of New Zealand affirmed the continued application of the rule in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 680 (SC)”: Nicola Peart “Human Tissue” in PDG Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at 705, n 6 and 22. In this chapter, Professor Peart discusses this case and other New Zealand cases, with many references to Professor Skegg; together with subsequent statutory provisions in New Zealand. Skegg “Human corpses, medical specimens and the law of property”, above n 1, at 412; echoing the comment in the High Court of Australia in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, at 408 that the lack of property protection would “render many of the most valuable collections in hospitals and museums liable to be carried away with impunity”.

In the 40 years since this article was published, Skegg’s predictions have proved true. Disputes have arisen with regard to many different types of bodily material and many different uses of it, especially with developments in the biosciences and the increasing value of human biospecimens in research and medical procedures. The English and Australian courts have dealt with the disputes pragmatically, stating principles necessary to resolve each case. There have been some judicial comments about the oddity of the ‘no property’ rule,8 but the courts have continued to apply it, especially in Australia,9 with exceptions as necessary in particular circumstances. Even legislative provisions have dealt only with particular activities rather than stating broad, consistent principles, with a clear theoretical basis. The historical developments can be seen in the following outline of the law in England and Australia.

THE EARLY CASE LAW IN ENGLAND; THE ‘NO-PROPERTY’ RULE

In nineteenth century England, as Professor Skegg observed, the law did not recognise that people could ‘own’ material removed from their bodies, or have any proprietary rights over such material. The cases focussed on rights and obligations relating to corpses awaiting burial. There were a number of cases stating that there cannot be property in a dead body;10 so that a corpse could not be owned; nor could it be stolen (in criminal law, a thing must be ‘property’ to be the subject

8 Such comments have been made both in England, in Jonathan Yearworth and others v North

Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1; and also in Australia, in Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 (Bazley): for example, at [31], White J noted ‘the “quirky” Doodeward exception’ to the ‘no property’ rule. However, like other State judges, she was bound by the High Court and had to follow Doodeward.

  1. One reason why Doodeward has been so influential in Australian law is that there have been
    no cases in the High Court of Australia on these issues since Doodeward was decided. There have been a number of cases in State courts that have raised similar issues (in particular the recent cases discussed later in this chapter involving the posthumous use of semen by widows in reproductive treatment). However, under the principles of legal precedent in Australia, State courts are bound by decisions of the High Court and there has been no opportunity for the High Court to re-examine the fundamental principles of law stated in Doodeward. Until Parliament intervenes, State judges are bound by the ‘no property’ principle that was established in Doodeward and they must adapt it so that it can be applied fairly in modern situations that could not have been envisaged when Doodeward was decided.

10 See, for example, the cases cited by Higgins J in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406: Handyside’s Case (1749) 2 East PC 652; Haynes’s Case [1572] EngR 94; (1614) 12 Co Rep 113; Coke Institutes of the Laws of England 3 Co Inst 110, 203; R v Sharpe [1856] EngR 24; (1857) 169 ER 959, Dears & B 160 at 163. After reviewing American cases, Higgins J concluded that ‘even in the United States Courts, the great preponderance of authority is in favour of the old English principle [that there is no property in a corpse]’, at 421.

of theft). However, the personal representative of the deceased was entitled to possession of the body for the purpose of burial and could obtain a court order to get the body back for burial if it was held by someone else.11

Underlying these cases, was a principle that bodies and body parts had special significance because they came from ‘people’. The possession of a corpse might be “injurious to the public welfare”, based on “considerations of religion, or public health or public decency”12 or “indignities offered to human remains”.13 Corpses had to be buried and the law had to be clear on who had the responsibility to bury them. Later, similar legal principles were applied without further examination to body parts as well as to bodies, as Professor Skegg had predicted. Each decision was a pragmatic response to the issues raised in that case. The decisions established that human bodies after death do not vest in anyone, though, as noted above, certain persons have a duty to bury the body and may bring an action for mandamus to have the body delivered to them for that purpose.14 A body could not be the subject of larceny if it was wrongfully taken, as no one ‘owned’ it.

Other cases required courts to decide who was entitled to possession of removed human tissue and so entitled to get it back, or to be compensated, if it was taken without that person’s consent. If the same approach was taken as in earlier cases – that there were no property rights in human tissue – then no one would have the right to get ‘their’ tissue back, or to be compensated for its removal or wrongful use. But that has not always been the case, due in part to developments in Australian case law that were later adopted in English law.

2. DOODEWARD V SPENCE (AUSTRALIA): BODILY MATERIAL COULD BE PROPERTY IF ‘WORK OR SKILL’ UNDERTAKEN

In 1908, in Doodeward v Spence,15 the High Court of Australia stated a principle that has been widely cited, both in England and in Australia, to the present. The Court said that undertaking ‘work or skill’ in preserving what was described as a ‘two-headed baby’ in formalin could make it ‘property’ and give rise to proprietary rights for the person undertaking the work or skill. Therefore, if the preserved

11 R v Fox [1841] EngR 1003; (1841) 2 QB 246.
12 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, at 413.
13 Foster v Dodd (1867) LR 3 QB 67 at 77.
14 R v Fox [1841] EngR 1003; (1841) 2 QB 246.

15 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; see also the discussion by Loane Skene “Doodeward v Spence” in Jonathan Herring and Jesse Wall (eds) Landmark Cases in Medical Law (Hart Publishing, Oxford, 2015) 11.

fetus was later removed without the consent of the person who undertook the work or skill, that person could sue for its recovery.

The facts of Doodeward are set out in the judgments of Griffiths CJ and Higgins J. The appellant brought an action for conversion and detinue for the recovery of the preserved body of what was called in the case ‘a two-headed baby’ (a malformed fetus), delivered still-born to a New Zealand woman 40 years earlier. The mother’s medical attendant had taken away the fetus, “preserved it with spirits in a bottle, and kept it in his surgery as a curiosity that, at his death ... was sold by auction with his other personal effects”.16 The appellant’s father purchased the bottle and contents at the auction for about £36 and exhibited them for gain. The respondent, a Sub-Inspector of Police, seized them under warrant. He later returned the bottle and the spirits but retained the fetus at the University museum. The Supreme Court held that there could be no right of property in a dead body and therefore the body could not be the subject of an action in detinue. Also, according to Pring J, the same principle applied to body parts removed from the body. The High Court agreed but there were some differences in the judicial reasoning.

The ‘no property’ principle was accepted in broad terms by the three judges but only Griffiths CJ based his judgment on the principle for which this case has been widely cited, even to the present day:17

... 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 it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.

The other two judges barely mentioned this aspect of the case.

3. LATER CASES: ‘THEFT’ OF BLOOD, URINE, BODY PARTS; FORENSIC TESTS

In other cases, English courts also adapted the ‘no property’ rule to deal with new circumstances. For example, they held that body parts, blood and urine, could be ‘stolen’. On earlier principles, that would seem not to have been possible unless

16 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, 410-411.
17 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 at 414.

‘work or skill’ had been undertaken on them, applying the Doodeward principle above. However, in 1974, an English court held that urine was property so that taking it was theft;18 and in 1976 a similar ruling was made regarding blood.19 In those cases, the urine and blood samples had been taken for forensic testing and if they could be removed with impunity, offenders who presented a risk to public safety might not be brought to justice. The urine and blood samples should therefore be subject to the law of theft in order to protect them. Similarly, in 1998, a court held that an artist who removed body parts from the Royal College of Surgeons to draw them had stolen them20 though, in that case, in line with the earlier cases, the body parts were said to have become property by acquiring different ‘attributes’ by being dissected and preserved for exhibition or teaching purposes. This was an application of the second limb of the Doodeward principle as different ‘attributes’ was mentioned by Griffiths CJ as an alternative to ‘work or skill’ as a means of conferring a property interest in bodily material. The ‘different attributes’ argument seems to apply more readily to preserved body parts than to the urine and blood that had simply been removed from the body for forensic tests; but, in all of these cases, the property approach enabled the preserved body parts to be protected by the law of theft.

A property approach was also convenient in an Australian case allowing a woman who had made a claim against the estate of a deceased man to gain access to his stored tissue sample for DNA testing, to prove she was his daughter. The court rules enabled an order to be made for access to ‘property’ and administrative efficiency dictated that the test be done as quickly as possible to settle the dispute regarding alleged paternity. A Master of the Supreme Court of Western Australia made the order for access and observed, after reviewing the ‘no property in a corpse’ cases, that “Doodeward was decided in 1908 some 50 years before Watson and Crick described the DNA double helix” and that “it defies reason to not regard tissue samples as property”.21

In a very recent case in England with similar facts, the High Court also authorised the release of stored bodily material from a deceased man for genetic testing to determine whether the applicant was his daughter.22 However, that decision did

18 R v Welsh [1974] RTR 478.
19 R v Rothery [1976] RTR 550.
20 R v Kelly; R v Lindsay [1998] EWCA Crim 1578, [1999] QB 621.
21 Roche v Douglas [2000] WASC 146 at [14].

22 Goncharova v Zolotova [2015] EWHC 3061 (QB); “‘Secret’ daughter of Georgian oligarch wins right to fight his widow for share of $1bn fortune” (29 October 2015) The Telegraph <www.telegraph.co.uk/news/uknews/law-and-order/11961288/Secret-daughter-ofGeorgian-oligarch-wins-right-to-fight-his-widow-for-share-of-1bn-fortune.html> .

not turn on property law; it was based on English statutory provisions regarding the collection of evidence for use in another country in support of proceedings in that country.23 The judge had no doubt that if the substantive proceedings were in the High Court in England, the court would make an order for the stored samples to be tested. There was no argument about whether stored tissue was property and the judge rejected the widow’s claim that, under the Human Tissue Act 2004, her consent was needed to release the samples. The court’s consent would be sufficient authority, she said. Throughout the judgment, the aim was clearly to act in such a way as to achieve an ‘expedient’ outcome. As the judge said, it was “highly expedient” to send samples to Russia to be tested so the results could be used by a Russian court.24

  1. CONSUMER PROTECTION LEGISLATION

Cases in other areas of the law have also been decided on pragmatic principles. Consumer protection legislation, for example, applies to the provision of ‘goods’. That principle would seem to exclude bodily material that, under the ‘no property’ rule, could not be property without ‘work or skill’ being undertaken on it, or it acquiring ‘different attributes’. However, an Australian court readily accepted that blood products are goods so that patients treated with faulty blood products could seek compensation under consumer protection legislation, rather than litigation for negligence.25 That finding made their claims much easier to establish as there is virtually strict liability under consumer protection legislation. The plaintiff does not have to prove fault, causation, and foreseeability of harm, as in a negligence action.

  1. WRONGFUL USE OF SURGICALLY REMOVED TISSUE

Other cases have considered the removal of material from a person’s body and its later use without the person’s consent. Should the person be entitled to compensation if the material is used without consent, or to share in the profits of a cell line developed from it?

One approach might be to draw an analogy with the cases discussed above. One could argue that the researchers could gain proprietary rights by undertaking the ‘work or skill’ of research, and that the cells removed gained ‘different attributes’ when converted into a cell line which could be perpetuated indefinitely. But

23 Goncharova v Zolotova [2015] EWHC 3061 (QB) at [41] and [71].
24 Goncharova v Zolotova [2015] EWHC 3061 (QB) at [82].
25 PQ v Australian Red Cross Society [1992] VicRp 2; [1992] 1 VR 19.

there is an important difference between this situation and the earlier cases. The preserved fetus in Doodeward and the preserved body parts in other cases were in the “lawful possession” of the person who had done the work on them.26 Should the same principle apply if that person has acquired bodily material without the knowledge or consent of the originator? One might think not but, in a widely cited American case, a court held that a researcher was entitled to develop and patent a cell line he developed from a man’s spleen cells after surgery without the man knowing about it (Moore v Regents of the University of California).27 The court held that the man had no right to share in the profits of the cell line (which was named after him) though he was entitled to be compensated for the cells being used in the research without his consent. The ‘lawfulness’ of the researcher’s initial possession of the cells did not affect the decision in the case which arose, of course, in a climate of scientific research and the public interest in protecting the vitally important developing biotechnology industry. As in other cases, a principle was adopted to achieve a pragmatic outcome.

6. SEMEN STORED FOR LATER USE IN FERTILITY TREATMENT

In the most recent cases on the legal status of human bodily material, other pragmatic decisions have also been made. First, exceptions have been recognised to the ‘no property’ rule with regard to semen stored for later use in fertility treatment. In 2009, the Court of Appeal for England and Wales held that men who had stored their semen before undergoing chemotherapy were entitled to be compensated when it was negligently destroyed (Yearworth).28 The decision was based on the men having a limited proprietary right in their stored semen that would found a bailment.

Later, courts have had to decide whether a man’s proprietary right in his stored semen could be transferred to his widow after his death so she could have their child posthumously. This was another novel question in the law relating to bodily material and it has been considered in several Australian cases. Under the Doodeward principle, as noted earlier, people have been able to acquire proprietary rights in another person’s excised bodily material by undertaking ‘work and skill’ on it.29 However, ‘inheritance’ is a different matter. In 2010, a justice of the

26 “Lawful possession” was a requirement of the Doodeward principle; see Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 at 414 per Griffiths CJ.

27 Moore v Regents of the University of California 51 Cal 3d 120, 271 Cal Rptr 146, 793 P 2d 479 (1990).
28 Jonathan Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1.
29 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

Supreme Court of Queensland accepted, out of sympathy for a widow’s loss of reproductive chances, her argument that she was entitled to possession of her husband’s stored semen because she was the personal representative and principal beneficiary of his estate (Bazley).30 Then, in another Australian case in 2011, a widow was held to be entitled to possession of her deceased husband’s semen even though it was removed after his death under a court order, so it could not be part of his estate (Edwards).31 In both of these cases, as in Yearworth, the judges acknowledged the lack of logic of the so-called ‘Doodeward exception’ to the ‘no property’ rule and discussed the application of principles of bailment. Yet, in Re H,32 a widow was awarded her husband’s stored semen on the basis of the ‘work or skill principle’ established in Doodeward. The court said that the semen had been lawfully collected under a court order and ‘work or skill’ had been expended in collecting it (an open testicular biopsy). It was therefore property. In deciding whose property it was, Gray JA, like Hulme J in Edwards, held that the person for whom the semen was extracted (the widow) was entitled to possession.

Since then, there have been a number of other cases in state courts reaching similar conclusions. Justice James Edelman said in a Conference presentation in 2014, that he was “aware of 6 occasions where the issue [of removing sperm from a deceased man on the application of his widow] has arisen in Western Australia alone” and he was “sure there must have been more in [Western Australia] and many more in other states”.33

7. THE PRAGMATISM AND INVENTIVENESS OF THE JUDICIARY

As in the cases that have been described earlier in relation to other areas of law, these cases illustrate the inventiveness of the judiciary in reaching what they regard as the ‘right’ outcome, despite legal principles that might seem to stand in their way. The judges in the Australian state courts, for example, were bound by Doodeward. Applying the ‘Doodeward principle’ the stored semen could not be regarded as property unless ‘work or skill’ had been undertaken on it, or it had acquired ‘different attributes’ as a result of its preservation. However, even if that was the case, it was not the widows who had undertaken the ‘work or skill’ in

30 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118. This may be compared with a more recent case in which stored semen was held to constitute personal property so that it formed part of the man’s estate: “Widow wins right to preserve dead husband’s sperm” (29 April 2015) The Canberra Times <www.canberratimes.com.au/act-news/widow-wins-right-to-preservedead-husbands-frozen-sperm-20150429-1mwdjd.html#ixzz3qb8wPBNr>.
31 Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478.
32 Re H, AE (No 3) [2013] SASC 196.
33 Justice James Edelman, above n 5.

preserving the semen, so a proprietary right could not be established on that basis in their favour. The response to that objection might be that the ‘work or skill’ had been undertaken on their behalf; that is, the doctors who obtained and preserved the husbands’ semen were acting as the widows’ agents. The concept of agency was, in fact, suggested by Hulme J in Edwards. Instead of regarding the doctors and technicians who preserved and stored Mr Edwards’ sperm as acting for their own purposes, he said, “the better view” was to regard them as acting “on behalf of Ms Edwards ... [i]n effect ... as her agents”.34 That was also the approach in Re H.

Agency was not mentioned in Yearworth or Bazley though it could have applied in the circumstances of those cases. However, in Yearworth, as noted earlier, the Court of Appeal expressly chose not to apply the Doodeward test, so the issue of agency did not arise. The Court decided the case on other grounds, namely that the men had proprietary rights arising from the bailment of their semen for their later use. They were therefore entitled to be compensated when it was negligently destroyed.

Thus, as Professor Skegg predicted in 1975, the courts, even the higher courts, have continued to decide cases before them to achieve a fair result, without undergoing a detailed theoretical analysis of underlying concepts and attempting to formulate principles that are consistent with each other in a broad context. That has been left to law reform bodies, legislators and academic commentators. These activities will not be examined in detail but a few brief comments will serve to illustrate the final argument in this chapter.

8. REPORTS OF LAW REFORM BODIES AND LEGISLATION

Like the courts, law reform bodies have generally adopted an ad hoc approach to the theory underlying proprietary interests in human bodily material. That has arisen from their terms of reference for particular projects. The Australian Law Reform Commission (ALRC), for example, which has been mentioned earlier, was instructed to recommend processes for the removal and use of human organs and tissue for transplant and research.35 That was its specific focus and it was not necessary to examine underlying legal principles that might be adopted in regulating other matters in the protection and use of human bodily material. The Commission recommended that it should be an offence to remove or use human tissue without the authority conferred by the legislation it proposed and in accordance with the appropriate consent; and that it should be an offence to trade in human organs or

34 Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 at [88].
35 See, for example, Human Tissue Act 1982 (Vic).

tissue (buying or selling them), with limited exceptions. The subsequent legislation following the report, which is largely still in effect in the form in which it was enacted, contained those provisions, which have been supplemented by ethical guidelines that enable bodily material to be used in research, even without the person’s consent, in certain circumstances.36 There was limited analysis of the legal nature of human organs and tissue, or the implications of regarding human tissue as property or governed by the principles of property law, in other contexts. Did it assume, for example, that the ‘donors’ of the tissue to be used for transplantation or research had a proprietary right to their tissue that enabled them to donate it? If so, did they have the right to get it back, or to have it destroyed, or to prevent it from being used by other people? Should the tissue be regarded as ‘abandoned’, the property of no one, so that it could be used later by another person who [lawfully] gained possession of it? These questions were not addressed. It seems simply to have been accepted that research should be regulated through principles of altruism and autonomy rather than property law,37 without further examination. Such issues were of little significance at that time. The modern techniques of assisted reproductive technology were not anticipated, nor the lucrative industry dealing with human biomaterials. Human tissue was not seen as having financial value that a ‘donor’, or other people, might wish to exploit.

Even when the wider theoretical issues were appreciated in policy discussions, however, there has not been a comprehensive analysis of property law as an instrument for regulating human tissue. Even the extensive and wide-ranging report of the Australian Law Reform Commission on issues raised by advances in genetic technology (Essentially Yours)38 related mainly to specific problems,

36 National Statement on Ethical Conduct in Human Research (National Health and Medical Research Council, National Statement, 2007) updated May 2015 ch 3.4. From a pragmatic perspective, this may be compared with the statutory provisions in the UK. In England and Wales, under the Human Tissue Act 2004, and in Scotland, under the Human Tissue (Scotland) 2006, human tissue that has been removed for diagnostic or treatment purposes, or kept for audit or forensic testing, may be used in research without the consent of the person for whom it was taken provided that a research ethics committee has approved the research and the material is provided in unidentifiable form. In England, Wales, and Northern Ireland, but not Scotland, a licence is necessary from the Human Tissue Authority to store tissue. In all of the UK, including Scotland, it is an offence to hold bodily material intending to analyse its DNA and use the results in research without consent from the person from whom it was removed; but there are limited exceptions.

37 Compare Rebekah McWhirter and others “Body ownership and research” (2013) 21 JLM 323.

38 Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC Report 96) (Australian Law Reform Commission, 30 May 2003) which was the product of a two-year inquiry by the ALRC and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC).

as is evident from a quick perusal of the chapter headings. One could say the same of the recent revisions to the National Health and Medical Research Council (NHMRC) ethical guidelines on ‘human biospecimens’;39 and, in the UK, the Nuffield Council’s thorough but research-focused report, Human Bodies: Donation for Medicine and Research.40

CONCLUSION

It can be seen from these brief comments about the development of the law on the use and protection of human bodily material that Professor Skegg’s predictions in 1975 have proved true. The courts’ decisions in this area have indeed been piecemeal and even the higher courts have been reluctant to undertake a wider review of underlying principles of property law. They have limited their judgments to the principles necessary to decide the cases before them. The same is true of other areas of law-making – law reform reports, which are limited by their terms of reference; legislation which is enacted in response to specific problems; and ethical guidelines which are also limited to specific issues. Only the academic community has the will and the resources to undertake the gargantuan task of wide-scape review and analysis, following in the tradition of Professor Skegg. Fortunately, academic research and publications dealing with these difficult issues have been growing rapidly in the last few years.41

39 National Statement on Ethical Conduct in Human Research (National Health and Medical Research Council, National Statement, 2007) updated May 2015 ch 3.4.

40 Human Bodies: Donation for Medicine and Research (Nuffield Council on Bioethics, Report, October 2011).

41 Recent publications include: Imogen Goold, Kate Greasley, Jonathan Herring and Loane Skene (eds) Persons, Parts and Property. How Should we Regulate Human Tissue in the 21st Century? (Hart Publishing, Oxford, 2014); Jesse Wall Being and Owning: The Body, Bodily Material, and the Law (Oxford University Press, Oxford, 2015). See also Special Issues of the Journal of Law and Medicine: “Regulating the use of human bodily material” (2013) 21 JLM 245-250; and the Journal of Medical Ethics: (2013) 40(10) J Med Ethics; Jesse Wall “The legal status of body parts: A framework” (2011) 31(4) OJLS 783; for New Zealand law, Nicola Peart “Human tissue” in PDG Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) at 705; and for Scotland, texts above n 5.


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