The Legal Status of Body Parts: A Framework

Oxford Journal of Legal Studies 31 (4):783-804 (2011)

Abstract
There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. It is suggested here that any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess which set of legal rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question. By isolating these two criteria, and identifying the limits to their operation, this article prescribes an analytical framework through which the law and academic commentary can be viewed
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DOI 10.1093/ojls/gqr023
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The Current Approach of the Courts.Loane Skene - 2014 - Journal of Medical Ethics 40 (1):10-13.
The Trespasses of Property Law.Jesse Wall - 2014 - Journal of Medical Ethics 40 (1):19-22.

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