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A Penny For Your Thoughts, A Pound For Your flesh: Implications of Recognizing Property in Human Body Parts

Harmon, SHE

Medical Law International   7 (4) 329-354

September 2006

http://intl-mli.sagepub.com/content/7/4/329.abstract

The implications of recognizing property in our own excised body parts are vast and far reaching, involving ethical, legal and practical issues that cut across many aspects of modern social intercourse and legal regulation. Arguments both for and against such recognition are well rehearsed; enough has been written to fill a small library, or at least a large bookshelf.

A significant portion of the work considers the role and impact of such recognition on human dignity. Indeed, given the special status accorded the human body, it is impossible to avoid human dignity and its interaction with the various choices presented by the adoption of a property model. However, reference to this general ethical value is of little assistance. Here, the ethical foundation of a property model is considered within the context of medical ethical four principles, namely autonomy, beneficence, non-maleficence and justice. If such a model promotes these principles, it can be ethically defended.

The primary implication of recognizing property in our own excised body parts – ‘the emergence of transactions relating to such parts as between originators and third parties’ - is assessed against these principles and found to be ethically defensible. In the course of that assessment, many of the derivative implications of adopting such a system (procurement, risk, allocation) are discussed. The necessary alterations to or limitations of the more purely property law principles are also briefly considered, namely issues of title, transfer, valuation and quality.

The paper concludes that a property model is ethically supported and legally manageable, and, despite the near impossibility of seeing it come to fruition, it may be the only way to truly engage potential 'donors' and recognize in them the same value and rights currently enjoyed by other actors in the body part industry.