Abstract
This paper outlines the current common law principles that protect people’s interests in their bodies, excised body parts and tissue without conferring the rights of full legal ownership. It does not include the recent statutory amendments in jurisdictions such as New South Wales and the United Kingdom. It argues that at common law, people do not own their own bodies or excised bodily material. People can authorise the removal of their bodily material and its use, either during life or after their death, for medical or scientific purposes. Researchers who acquire human bodies, body parts or tissue pursuant to such an authority have a right to possess and use them according to the authorisation they have been given, but their rights fall short of full ownership because they are limited in the way that they can use the material. The legal rights of researchers who develop intellectual property and biological products from excised human tissue can be adequately protected by existing common law principles without the need for a new legal principle that people own body parts and tissue removed from their bodies.
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Notes
Although the case of Washington University v William J Catalona et al. did not determine whether the people concerned ever had a property right in their tissue, the decision is consistent with them having a property right which was extinguished by donating the tissue for research.
The revised statement published in April 2007 (available online at http://www.nhmrc.gov.au) also envisages that a HREC may waive consent for the use of stored human tissue in research in certain circumstances: see para 2.36.
References
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Skene, L. Legal Rights in Human Bodies, Body Parts and Tissue. Bioethical Inquiry 4, 129–133 (2007). https://doi.org/10.1007/s11673-007-9056-3
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DOI: https://doi.org/10.1007/s11673-007-9056-3