Themes:
Legal questions arise as to whether there is a distinction between body and bodily artefact and between property rights and personal rights.
Dignity:
Every human has a legitimate claim to respect from other human beings in return for respecting others. [1] Humanity itself is dignity and means that humans cannot be used or commodified. Following this train of thought, a person cannot have property in themselves.
Slavery:
Obviously, the notion of human dignity conflicts with slave regimes both of the past and present.
Organ Markets:
The idea of human dignity also conflicts with illegal sale of organs to the highest bidder. Allowing property rights in the human body would commodify it too much. However, the question arises as to why it is acceptable to donate an organ, but not to sell it.
‘every financial stimulus towards organ donation will be problematic on grounds of exploitation’ of the poor in need of money. [2]
An EU report shows that there is huge ‘market demand’ for organs and, because of this, illicit trafficking of organs is an ongoing international problem despite legal efforts. [3]
Dividing the Body:
The view of property in the body can vary significantly depending on how the body is viewed. It can be seen as a singular whole, or as a number of constituent parts. A distinction can also be drawn between things inside the body, such as organs, and things outside, such as sperm or eggs.
Labour and Application of Skill:
Under Locke’s theory of possessive individualism, ‘every man has a property in his own person. This nobody has any right to but himself.’ [4] It is unclear as to whether Locke meant that man has ownership in himself and his body, or merely the property they labour on.
Cases:
In Moore v Regents of the University of California, part of M's spleen was removed as part of his cancer treatment. M’s claim succeeded on the basis that he did not give informed consent, not because he owned property in his body.
In Yearworth v NHS, Y’s claim succeeded on the basis that the men had a kind of property right in their sperm, not because they owned property in their bodies.
See more information about each case in their case analysis.
Resources:
References:
[1] Immanuel Kant, The Metaphysics of Morals (1797) [2] Kate Greasley, ‘A Legal Market in Organs: The Problems of Exploitation’ (2014) Journal of Medical Ethics 40:51-56 [3] Directorate-General for External Policies, Trafficking in Human Organs (2015) [4] John Locke, Second Treatise of Government (1689)
Cases Mentioned:
Moore v Regents of the University of California, 51 Cal.3d 120 (1990)
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37
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