Do you own your body? Advances in science and the development of genetic databases have added an aura of modern controversy to this long-standing and, as yet, unresolved problem. In particular, English law governing separated human tissue (including organs, DNA and cell-lines) is unsatisfactory. Despite the enactment of the Human Tissue Act 2004 UK, it remains uncertain what property rights living persons can claim over tissue separated from their bodies. The development of clear legal principles is necessary to protect the rights of individuals while also enabling the efficient use of such materials in medical research. Part I of Law and the Human Body traces the evolution of English, Australian, United States and Canadian law in relation to human tissue separated from living persons and dead bodies. This includes a comprehensive examination of the Human Tissue Act 2004 UK as well as prominent judicial decisions, including Re Organ Retention Group Litigation  QB 506, Colavito v New York Organ Donor Network Inc 8 NY 3d 43 (NY CA 2006) and Washington University v Catalona 490 F 3d 667 (8th Cir 2007).
Analysis demonstrates that, although property rights and non-proprietary interests in separated human tissue are recognised in limited circumstances, no principled basis has been accepted either at common law or by statute for the recognition of these rights and interests. Part II of this book develops and defends a principled basis in English law for the creation and legal recognition of property rights and non-proprietary interests in separated human tissue. Significantly, the analysis and principles presented in Law and the Human Body have application across common law and civil law jurisdictions worldwide.
Rohan Hardcastle, BA LLB (Hons) (UWA) D Phil (Oxon), has been admitted as a barrister and solicitor of the Supreme Court of Western Australia and currently practises as a barrister in New South Wales.
CHAPTER 1 INTRODUCTION ABiological Materials and Scientific Research 1Human Tissue Collections and Genetic Databases (a)Tissue Collections (b)Genetic Databases 2Biological Materials (a)Physical Manifestations Genetic Information BLegal Framework 1Legal Status of Biological Materials 2Proprietary Protection 3Non-proprietary Protection CStructure PART I CHAPTER 2 DEAD BODY ANo Property Principle BProperty Rights 1Work or Skill Exception 2Constitutional Protection 3Tort of Wrongful Interference 4Summary CNon-proprietary Interests 1Right to Possession for Burial 2Quasi-property Rights 3Statutory Rights to Possession 4Protection under Tort Law 5Solatium for Affront 6Respect for Private and Family Life 7Summary DConclusion CHAPTER 3 LIVING BODY ASlavery BRejection of Individual Property Rights 1Moore v Regents of the University of California 2Greenberg v Miami Children's Hospital 3Washington University v Catalona 4Summary CProperty Rights 1Biological Materials (a)Statute (b)Common Law (c)Summary 2Cell-lines 3Gametes (a)Statute (b)Common Law 4Hair Clippings 5Waste Products 6Summary DNon-proprietary Interests 1Statute 2Common Law 3Summary EConclusion CHAPTER 4 HUMAN TISSUE ACT 2004 AHuman Tissue Act 2004 1Consent Requirements 2Exceptions to Consent Requirements 3Prohibition on Commercial Dealing (a)Original Clause 29 (b)Section 32 4Non-consensual DNA Analysis Offence 5Summary BConclusion PART II CHAPTER 5 PROPERTY RIGHTS AQuestion BTransformation of Biological Materials CCreation of Property Rights 1Work or Skill Exception 2First Possession 3Specification Doctrine (a)Background (b)Elements (c)Application to Work or Skill Exception (d)General Principle DConclusion CHAPTER 6 CREATION AND ALLOCATION OF PROPERTY RIGHTS AProperty Principles 1Detachment 2Detachment plus Intention (a)Judicial Support (b)Intention (c)Difficulties 3Summary BApplication 1Original Biological Materials (a)Transfer (b)Abandonment (c)Remedies (d)Summary 2Additional Biological Materials (a)Medical and Scientific Research (b)Intellectual Property (c)Specification and Accession (d)Application (e)Summary CConclusion CHAPTER 7 NON-PROPRIETARY INTERESTS AProtected Interests BEnglish Law 1Autonomy (a)Underlying Value (b)Wrongs 2Emotional Distress (a)Definition (b)Wrongs 3Summary CDeveloping Liability 1Protected Interests 2Conduct 3Elements DConclusion CHAPTER 8 CONCLUSION