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	Murdoch University Electronic Journal of Law

Human Property: Threat or Saviour?

Author:	Richard Taylor B Econ, LLB (Hons) Newcastle University Faculty of Law
Issue:	Volume 9, Number 4 (December 2002)

Contents:

• Introduction
• Origins of the Rule
• Authority for the Rule
• Exceptions to the Rule
• The Theft Exception
• The Next of Kin Exception
• The Work and Skill Exception
• Museum Exhibit Exception
• Medical Cadaver Exception
• Regenerative Tissues Exception
• Potential Biotechnology (Human Tissue) Exception
• Potential Post-Death IVF Exception
• Grounds for Overturning the Rule
• Judicial Policy and the 'No Property' Rule
• Nature of Property
• Public Policy Change: The Problem with Common Property
• Conclusion
• Notes

Introduction

1. No other rule of law can claim as macabre a passage through history as the common law rule that there is 'no property in the human body'. Slavers, grave robbers, grieving widows, freak show exhibitors and harvesters of body parts have featured prominently. The rule is only now coming in from obscurity and assuming growing importance. New uses for the human body, driven by medical advances in IVF, stem cell research, cloning, gene therapy and other like areas, require that we re-examine the efficacy of this rule in its application to modern circumstances.

2. This article summarises the current legal status of the rule and examines the current policy justification for its existence. What can be seen from this eclectic mass of literature is that if the rule ever existed it has been heavily undermined. It can now be questioned whether there is any public policy reason for maintaining the rule at all. In fact, it could now be argued that the certainty of a property-based regime is the best means of protecting the human body.

   Origins of the Rule

3. The law originally recognised property rights in the human body. The feudal doctrine of tenures and the slave trade were two examples of such property rights. The courts recognised that wisely or not, "a portion of our fellow creatures may become the subject of property".[1] This situation continued well into the 19th century when slavery was abolished.[2]

4. Prior to legislative intervention the law had increasingly shied away from enforcing contracts over human property. Judges started to make grand policy statements against allowing recognition of these rights. In Cartwright's Case, (1569) it was stated that "England has too pure an air for slaves to breath in"[3] or in Somerset v Stewart it was held that slavery was "so odious, that nothing can be suffered to support it, but positive law"[4] From these origins the law has developed

   Authority for the Rule

5. Despite numerous instances where the rule has been dogmatically stated, there is surprisingly little direct case authority.[5] Most commentary consists of obiter remarks. However, a coherent principle has been said to derive from this amorphous body of literature that ranges from ecclesiastical law to grave robbing.

6. The oldest and most often cited source of the rule is said to be Haynes's Case, decided in 1614.[6] A Mr. Haynes was charged with stealing the winding sheets that bound the bodies of four people from a graveyard. He was whipped for petty larceny.[7] The first point to note is that the case does not involve theft of a body. The case stands for the proposition that a body cannot own property. Magnusson has also argued that the case has wrongfully been used as authority for the 'no property' rule.[8]

7. The second primary case in which textbook writers and judges have sought to find authority for the no property rule is Dr Handyside's case (1749).[9] Matthews, in undertaking considerable research of the 4 line report in East's Pleadings of the Crown, has thrown doubt upon its usefulness. The case involved an action for trover brought against the doctor who delivered two still born babies joined together. The report states that "the action would not lie, as no person had any property in corpses".[10] Matthews has shown that this is more than likely merely the opinion of the textbook writer as the case was settled before the jury returned. Matthews concludes that:

   "Exelby v Handyside is a palpably unsatisfactory case upon which to base a 'no property' rule for unburied corpses: it is not a decision on the point, let alone one binding on courts to follow it".[11]

8. The authority upon which the whole rule is said to rest is highly questionable. This uncertain basis has contributed to the difficulties encountered by the courts in their attempt to develop and apply the rule.

   Exceptions to the Rule

9. The rule has developed through the incremental growth of exceptions and there have been very few instances where the rule has been strictly applied. A brief overview of the exceptions will illustrate the extent to which the rule has been eroded.

   The Theft Exception

10. The 'no property' rule strictly applied was thought to rule out larceny of a corpse.[12] The court applied an exception to enforce the public outrage that was felt towards these activities. Grave robbing became a misdemeanour regardless of the fact that a charge of theft could not be brought.

11. The case of R v Cundick dramatically portrays events such as these.[13] George Cundick was hired to bury one Edward Lee. When relatives attempted to view the body, Cundick told them he had buried it already. He had gone to the effort of conducting a false ceremony, burying rubbish in a coffin. In the dead of night he was observed removing a heavy package from his house that he placed into a hackney coach. He was later found at a surgeon's house where it was said that he:

    "dissected, cut into pieces, mangled and destroyed [the body] to the great scandal and disgrace of religion, decency and morality, in contempt of our said Lord the King and his laws, to the evil example of all other persons."[14]

    It is unclear from this report what crime had been committed.

12. Alternatively, the courts sought to circumvent the rule by saying that the body constitutes a trespass to land. The body is seen as part of the soil. The trespass approach was adopted in R v Sharpe.[15] In that case a son sought to remove his mother's body from a Protestant grave to be buried as a Catholic. Even though the son's motives were "pious and laudable," his actions still constituted a misdemeanour.[16]

    The Next of Kin Exception

13. The courts have also allowed an exception to protect the rights and duties of people who have an interest in the interment of a corpse. Justice Young in Smith v Tamworth City Council[17] considered this right as a "sort of quasi-property".[18] The executors have a quasi property right to control what happens to the corpse. In some instances the right vests in the next of kin or even the owner of the premises where the person died.[19]

14. The executors can protect their right in the courts. For example, the next of kin can raise the tort of wrongful autopsy if medical practitioners illegally interfere with the body before burial.[20] These rights are not affected by terms of the will specifying what should happen to the body[21] It is difficult to see how these rights differ from a full property right.

15. In the United States, the 6th Circuit Court of Appeal in Brotherton v Cleveland considered the extent to which a "quasi-property" right mirrored normal rights.[22] In this case the next of kin claimed damages for the unauthorised removal of the deceased's corneas. On appeal, it was held that the rights of the next of kin were sufficient to gain the protection of the due process clause in the constitution. The clause confers a right to due process when a person is to be denied a property right. The court awarded the plaintiff damages for emotional distress.

    The Work and Skill Exception

16. The "work and skill" exception was first applied by the High Court in the1908 case of Doodeward v Spence.[23] The case involved a two-headed foetus preserved in a bottle filled with spirits. The baby had been stillborn 40 years prior to the case coming to court. It had been preserved by the attending doctor, Dr Donahoe, and kept as a curiosity. The foetus was later sold as part of the doctor's estate to the appellant. The appellant exhibited it for profit until the police seized it and an action was brought by the plaintiff/ appellant for recovery of the foetus.[24]

17. The case "created" an exception where "work and skill" could transform the human body into property. Griffiths CJ recognised "permanent possession" as a property right and used this as a basis to establish the exception. He held that:

    "I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property".[25]

    Without exhaustively defining the circumstances where the human body can be property he further held that:

    "When a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it."[26]

18. Griffiths CJ rejected previous authorities as having been corrupted by a misinterpretation of the early 'no property' and slavery cases. He declares that:

    "Many doctrines have been asserted on the supposed authority of learned persons, who addressing themselves to one aspect of the question, have used language which has been generalised in a manner at which no one would have been more surprised than the supposed authors of the doctrines."[27]

    Griffiths CJ went on to find that past authorities were not binding and interpreted the case as the first occasion it had arisen and derived his decision from general rules of the common law.[28]

19. Justice Barton agreed with the Chief Justice but his decision focused on the difference between the "dead born foetal monster" and the human body.[29] The judgment may be consequently limited to bits of the human body. The exact scope of the ratio in Doodeward is therefore somewhat hard to isolate. Justice Higgins dissented. He regarded the law as settled in that there could not be property in a human body for any purpose.

    Museum Exhibit Exception

20. Advances in science and the quest for knowledge have been the source of a number of exceptions. The courts have read down the rule or created an exception generally wherever a valid use for human material has been found. Lynch has observed that:

    "It would seem that the courts will start with the 'no property in a body' proposition and then modify it according to the circumstances of the case. They will accept and recognise limited property rights in human tissue taking into account the purposes for which an individual wishes to exert a proprietary right and the nature of the tissue over which a proprietary right is sought to be exerted."[30]

21. Early on, the law provided an exception for the medical use of cadavers and retaining human remains of anthropological value in museums. In Doodeward v Spence the judges were unanimous in their categorisation of Egyptian mummies as the property of the museums in which they resided. Even Justice Higgins in dissent stated that he assumed that museum exhibits could be property.[31]

    Medical Cadaver Exception

22. Even some of the early textbook writers recognised the need for an exception to the rule to cover medical use of cadavers.[32] In Australia cadavers are covered by the work and skill exception. In England, the proposition was recently considered in R v Kelly.[33] The defendant in that case was charged with stealing "three heads, three torsos, part of a brain, six arms and ten legs and feet from the Royal College of Surgeons in London."[34] The defendant claimed he wanted the body parts in order to create bronze sculptures. The judge rejected the defence that there was no property in the human body and sentenced him to 9 months jail.

23. In the England and Wales Court of Appeal the conviction was upheld. The court drew a distinction between a corpse and body parts in reaching its decision. The proposition that a complete corpse could be property was rejected. Lord Justice Rose highlighted the "questionable" origins of the rule but felt bound by 150 years of the common law to follow this approach unless changed by statute.[35] The court held that body parts could be property only in certain circumstances. Body parts could be transformed by "virtue of the application of skill".[36] In making these findings Lord Justice Rose stated:

    "The common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property...This may be so for example, where they are intended for use in an organ transplant operation, for the extraction of DNA or, for that matter, as an exhibit in a trial."[37]

    This approach foreshadows the potential array of exceptions that may be entertained by the court in future cases.

    Regenerative Tissues Exception

24. The law has recognised proprietary interests, more recently, in regenerative human biological material. Griggs highlights "The sale of blood in American jurisdictions, the recognition of property in hair, urine and bone marrow, and the existence of sperm banks" as examples of recognised property rights over human biological material.[38]

25. The courts have also been willing to treat regenerative tissues as property capable of being stolen. In the United States case of The State v Truesdale[39] a person was convicted of the theft of a wig made from human hair.[40] In England convictions for theft have been upheld where hair has been cut and stolen from people's heads.[41]

26. There are a number of authorities dealing with the theft of urine and blood in the context of driving under the influence of prohibited substances. There has been some academic debate as to the relevance of the following cases in support of the argument that property rights now exist in human tissue. In the United Kingdom case of R v Welsh,[42] the judge made passing reference to the tipping out of a urine sample as a "technical [property] offence".[43] In R v Rothery[44] the defendant was charged with the theft of "a capsule containing a specimen of his blood." The charge was not under appeal when the case came before the House of Lords. Matthews has argued that the House of Lords comments indicate that the capsule and the blood were treated as one entity however Mortimer has rejected this interpretation referring to the comments as dicta only.[45]

27. Mortimer also makes reference to the approach of the courts in E v Australian Red Cross Society[46] and PQ v Australian Red Cross Society.[47] These cases considered whether blood products could be "goods" or "materials" for the purposes of the Trade Practices Act 1974. The fact that the cases concerned statutory definitions may mean they are of little value to the general analysis. The cases are important in illustrating the increasing complexity and difficulty in maintaining the 'no property' rule in the face of most of the indicia of property.

    Potential Biotechnology (Human Tissue) Exception

28. There have of course been instances where the no property rule has been applied strictly. Strict applications of the rule have had mixed results in achieving the prime policy goal of improving respect for the human body. An example is the Californian Supreme Court decision in Moore v The Regents of UCLA. The case was one of the first to deal with the complicated issue of the human body and advances in biotechnology.

29. The plaintiff in Moore's case was receiving treatment for "hairy cell leukemia" from the University of California Medical Centre. His treating physician, Dr Golde recognised the "competitive, commercial and scientific advantages" of Moore's cells.[48] As a result of Moore's condition it was necessary to remove Moore's spleen. Dr Golde and Dr Quan organised to obtain samples from the cells. Moore was not informed of the research, the doctors' actions or asked for his consent to such treatment. The doctors' actions were "actively concealed" from Moore.[49] He was in fact encouraged by the doctors to return to the facility for ongoing treatment where "blood, blood serum, skin, bone marrow aspirate and sperm"[50] were harvested for research. Moore brought an action in conversion against the doctors and the regents of the University.

30. The defendants proceeded by demurrer alleging that the plaintiff had wrongly pleaded the cause of action. At first instance the trial judge upheld the demurrers.[51] On appeal, the Californian Court of Appeal overturned the decision and the judges were prepared to accept that a claim in conversion could lie. The Supreme Court of California eventually denied Moore's claim. However, five of the seven judges agreed that Moore should succeed on the basis of a breach of fiduciary obligations.

31. Justice Mosk (in dissent) and Broussard J agreed that the consent model was inadequate to protect patient rights. Remedies based on breach of fiduciary duties related to consent would not allow for remedies against third parties that a conversion treatment allows. Mosk J argued against allowing biotech companies to "freely mine or harvest valuable physical properties" of their patients.[52] He adds that:

    "The most abhorrent form of such exploitation of course was the institution of slavery...yet their specter haunts the laboratories and boardrooms of today's biotechnological research-industrial complex."[53]

    It is interesting to note that the 'no property' rule was developed to guard against property in slaves however property rights can now be considered important in protecting personal rights in the human body.

32. Australian courts have by and large not adopted the American authorities and have preferred to utilise the "work and skill exception" to deal with new developments. The Supreme Court of New South Wales in Pecar v National Australia Trustees Ltd considered that tissue samples are property for the purposes of Part 25 rule 8 of the Supreme Court Rules.[54]

33. The case concerned a request for paternity testing of tissue samples taken from a deceased person. The issue was raised whether the samples constituted property for the purposes of the legislation. Bryson J, on the authority of Doodeward v Spence, held that when the samples were fixed in paraffin they were transformed into objects capable of constituting property. The finding that placing samples in paraffin involves "work and skill" is an extremely broad interpretation of the Doodeward test. In the United Kingdom case of Dobson v North Tyneside Health Authority it was held that preservation was not a sufficient level of work and skill to render the sample property.[55]

34. Master Sanderson of the Supreme Court of Western Australia took a very broad approach in Roche v Douglas in deciding that body samples were property.[56] The case again involved paternity testing of "body samples" taken from the deceased and preserved in paraffin wax.[57] Master Sanderson said referring to Doodeward v Spence that

    "Perhaps, if anything is to be drawn from the case, it should be to adopt the sentiments of Griffiths CJ and regard this present case as the first case arising in the 21st Century on the status of body tissue and to decide the case in accordance with general principles of law which are, hopefully, in accordance with reason and common sense."[58]

    The exception was recently limited in AW v CW to samples taken when a person was alive and not those taken after death.[59]

    Potential Post-Death IVF Exception

35. A number of cases have now come before the courts where wives of deceased spouses have sought possession of the deceased's sperm for the purpose of undergoing in vitro fertilisation. There is no firm authority as yet for such an exception.

36. In AB v Attorney General of Victoria the deceased had died suddenly and his wife sought semen samples to be removed from the body.[60] The issue came before the court on an urgent basis late on a Sunday evening, as sperm is only of use if taken within 24 hours of death.[61] Gillard J granted the application, although he reserved for further consideration whether the deceased's personal representative could make any use of the sample. There are no reports of the eventual outcome of the application.[62]

37. A similar application was rejected in In the matter of Gray on the basis that the court had no jurisdiction to deal with the application.[63] Justice Chesterman took a narrow view of the authorities and the court's role in general. In doing so he said:

    "It is not a proper criticism of the law that it has not developed a specific principle applicable to the opportunities presented by such change. The law should not have to cater for every technological possibility. Good sense and ordinary concepts of morality should be a sufficient guide for many of the problems that arise."[64]

    He went on to state that the Parliament was the proper forum for dealing with such issues.

38. The European and United Kingdom courts have regarded sperm as a property interest vested in the executor or personal representative. In the United Kingdom the rights to the sperm were upheld, despite a prohibition on their use for in vitro purposes. The case of R involved identical circumstances to those encountered in the leading Australian cases.[65] The decision was significant because it allowed the sperm to be transferred to Belgium, a jurisdiction with no prohibition on such use.

    Grounds for Overturning the Rule

39. The continual increase in exceptions has undermined the rule to the point where it is possible to consider overturning it. The High Court has, on a number of occasions, shown itself willing to overturn common law rules when they no longer serve the purpose for which they were intended. In Burnie Port Authority v General Jones Pty Ltd the strict liability rule in Rylands v Fletcher was effectively abolished. The High Court, in doing this, stated that the rule, along with "all its difficulties, uncertainties, qualifications and exceptions should be seen now... as absorbed by the principles of ordinary negligence."[66]

40. Recently in Brodie v Singleton Shire Council,[67] the High Court has expounded some of the indicia that show that a rule has ceased to serve its purpose. Brodie abolished an old established rule of immunity from liability conferred upon highway authorities. The court looked at the "unprincipled distinctions"[68] that it created, the universal criticism of the rule,[69] the position in other jurisdictions, whether the rule still served the policy requirements and the idiosyncrasy of the outcomes it led to. The High Court, in that case, overturned the rule despite past authority in support of it.[70]

41. It is submitted that the 'no property' rule is another prime candidate for reformulation by the High Court. A survey of the various exceptions, idiosyncrasies and criticism outlined above should indicate that the 'no property' rule falls within the ambit of the Brodie approach.

    Judicial Policy and the 'No Property' Rule

42. The analysis so far has sought to question firstly, whether there is authority for the no property rule and secondly whether the number of exceptions and inconsistencies can be grounds for removing the rule. The final part of this article deals with the question: Should this happen? If the human body exhibits the characteristics of property and there is no prevailing policy rationale against the human body being property then overturning the rule should be considered.

    Nature of Property

43. The bundle of rights that lead to a property right being established are many and varied. These various measures include the ability to exclude others,[71] the right to possession,[72] the objects "thingness",[73] inviolability, dominion or control and whether it can be traded.[74] These indicia overlap and are interrelated. For example, a right of possession requires a correlative right to exclude others from so possessing.

44. It is not necessary that every object that is property exhibit all of the indicia. Potts states that:

    "Simply because [a person's] bundle of property rights has been reduced does not mean that a [person] has lost the entire bundle of rights."[75]

45. The High Court's recognition of native title involves a property right that cannot be alienated but is still property. Justice Brennan in Mabo v Queensland[76] recognised that while "land in the exclusive possession of an indigenous people is not, in any private law sense, alienable property...there is no reason why that title should not be recognised as a burden on the Crown's radical title".[77]

46. If we examine the rights that can currently be asserted with regard to the human body we can build up a picture of something that has the shape and appearance of property but not the name.

47. The human body cannot be traded but as indicated this is only one aspect.[78] Eagle feathers,[79] opium and cannabis[80] have all been held to be "tangible personal property" despite it being illegal to trade and possess them respectively.[81] The right to "lawful possession" and the right to enforce it are equally important.[82] Possession or attachment to land has founded property rights,[83] as has the lawful retention of the bottled foetus in Doodeward v Spence. The ability to protect against violation of rights is also indicative. The state enforced penalty is usually an action for larceny but exceptions do exist for example larceny originally could not be charged for the taking of title deeds.[84] The criminal law protects the living body through assault provisions and provides misdemeanours for the theft of a dead body.

48. Even if the human body satisfies the requirements of property the modern policy implications need to be considered because the courts have placed such emphasis on the policy rationale for the rule.

    Public Policy Change: The Problem with Common Property

49. The rule traditionally has sought to place a greater value on the human body as opposed to other objects. The argument was that by "commodifying" the human body we would diminish respect for human life.[85] Public policy and morality are dynamic and change with time. The 'no property' policy rationale developed centuries ago and did not envisage the vast developments in medical science. Developments now occur in a legal vacuum because of the 'no property' rule. Reliance must be placed on legislation that often lags behind the groundbreaking technologies that pose the problem or on elaborate exceptions developed by the courts. It is open to the courts to examine whether public policy is still being served by the rules established to pursue them.

50. The commodification argument ignores a fundamental of property in law. Property according to Cohen describes relationships between human beings and not merely about objects.[86] Stating that an object is someone's property establishes a protocol for the use of that object without pronouncing necessarily upon the worth of that object. Arguments that equate property with objectifying the human body misconstrue what it means to say something is property in law.

51. The 'no property' rule can actually diminish the respect people have for the human body. Analogies can be drawn to other examples from the natural world where property rights are non-existent, cannot be enforced or are ill defined. Economists refer to these situations as "common property" problems. Examples include the atmosphere, the ocean, views and cases involving wild animals such as fishery stocks.[87]

52. Garrett Hardin in The Tragedy of the Commons portrayed the problem with common property.[88] In England, historically, the commons were free to be used by everyone for grazing and farming purposes.[89] For each farmer it made sense to attempt to graze as many cattle as possible in order to better cater for the needs of his family. The farmer did not own the commons. If the farmer refrained from grazing someone else would get the benefit of the fodder on the commons. When the population grew the problem of overgrazing became endemic but for each farmer it was still logical to attempt to graze as many animals as possible. This was the tragedy of the commons. Common property is depleted to the point where it is destroyed because the cost of its acquisition, upkeep and maintenance is not adequately reflected by its use and market price.

53. Common property suffers from the problem that the usage cost and exploitation of the asset is not born by the individual user but by society as a whole. For example, it is personally efficient for an industrialist to pollute the sky because the benefits accrue to him or her personally while everyone shares the costs. Hardin stated that:

    "The individual benefits as an individual from his ability to deny the truth even though society as a whole, of which he is a part, suffers."[90]

54. Because no one has a proprietary interest in the sky, no one, except perhaps the government, will seek to enforce their interest in clean air. No property rights mean that the common property is disregarded from the economic equation. An input such as the atmosphere acquired at zero cost has a value in the market of zero. Where the intrinsic value is greater than the market outcome a situation of market failure arises. Situations of market failure can be corrected by correlating the interests of those involved, making the market value equal its intrinsic value.

55. The market economy treats "no property" situations akin to those where there is no worth in the object. In the modern commercial setting, the human body, far from being placed on a pedestal, is treated in a similar manner. This proposition has not been lost on the judiciary. Chief Justice Gleeson, speaking extrajudicially has stated that "In Australia now, everything of value [has] its price - and nothing without a price is valued."[91] Does this now mean that because the human body is not property nor has a price, that it is not valuable? This state of affairs brings into question whether the position of the courts on the 'no property' rule is sustainable on an analysis of the public policy result. It would perhaps be better to conceive of the human body as property that is 'priceless' very similar to how we view a painting by a great master.

56. The human body is subject to use and development by biotech and medical companies. The resource is not subject to depletion as with other forms of common property. The degradation occurs through its treatment by these companies in the rush for profit and the incentives to be the first to alienate personal and intellectual property rights from the source material. The loss of access to communal information, basic cell lines and the unjust enrichment of individuals from what amounts to a common inheritance are the physical signs of the degradation the 'no property' rule creates.

57. A prime example of the degradation of human property is the effect that the 'no property' rule has on the conduct of medical practitioners and their attitudes to donated human organs and biological material. Moore's case is a particularly relevant example. The doctors, in that case, conducted their research without regard to the best interests of the patient, as if they had a right to the research material. Adequate patient rights are best achieved when a property interest is being dealt with. People appreciate a gift or donation that has value even if it cannot be traded. Articles of value are treated with greater respect than those acquired for free. Articles acquired for free are often wrongly associated with a right to their acquisition.

58. Justice Broussard, in Moore's case, recognised the failings of the common law approach where he highlights that:

    "Far from elevating these biological materials above the marketplace, the majority's holding simply bars the plaintiff, the source of the cells, from obtaining the benefit of the cells' value, but permits defendants who allegedly obtained the cells from the plaintiff by improper means, to retain and exploit the full economic value of their ill-gotten gains free of their ordinary common law liability for conversion."[92]

59. It should be remembered that the institution of private property regulates rights between people as regards objects. Allowing property rights over the human body regulates what people can and cannot do to biological material. Viewed in this way human property improves rather than threatens respect for the human body.

60. It is submitted that the rule should be re-framed in terms of personal ownership of one's body. Ownership can and should be severely restricted. Any changes to the 'no property rule should pay proper regard to the legitimate rights and limitations to a property regime.

    Conclusion

61. The rule against property in the human body is founded on dubious origins and has been misinterpreted by successive applications of the rule to new uses of the human body. The approach of the courts has been to recognise increasing numbers of exceptions to the rule. This has occurred through artificial legal reasoning in order to support public policy. The number and extent of exceptions to the rule brings into question whether the rule can be said to exist in law at all.

62. The public policy concerns expressed by supporters of the rule have likewise been called into question. Capitalist economies do not value things that are not property in decision making processes. The fact that the human body is not property creates an incentive to exploit the resource, degrading it in the eyes of the business sector and the community as a whole. Allowing property rights in fact raises the respect for the human body. The body should be seen as property that is so valuable it cannot be traded. Attributing property rights is a means of providing a framework of legal rights and duties that has been proved effective in protecting individual freedoms and interpersonal responsibilities.

Notes

[1] Gregson v Gilbert (1783) 99 ER 629.

[2] Act 3 & 4 William IV. C. 73. Cited in H Catterall, Judicial Cases Concerning American Slavery and the Negro, Shannon: Irish University Press, 1968 at 13.

[3] Cartwright's Case (1569) 2 Rushworth 468.

[4] Somerset v Stewart (1772) Lofft 1 cited in Jud at 15

[5] For example see Williams v Williams [1881] Ch D 659 or Doodeward v Spence (1908) 6 CLR 406.

[6] Haynes's Case (1614) 12 Co. REP. 113

[7] R Atherton, "Claims on the deceased: The Corpse as Property", (2000) 7 Journal of Law and Medicine 361 at 366.

[8] R Magnusson, "The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions", (1992) 18 Melbourne University Law Review 601 at 603.

[9] Dr Handyside's Case; Exelby v Handyside (1749) 2 East PC 652

[10] P Matthews, "Whose Body? People As Property", (1983) Current Legal Problems 193 at 208.

[11] Above n 10 at 210.

[12] See for example Stephen's assertion that a corpse could not be stolen cited in P Matthews, "Whose Body? People As Property", (1983) Current Legal Problems 193 at 197.

[13] R v Cundick (1822) Dowl. & Ry N.P. 13

[14] Above n. 13 at 14.

[15] R v Sharpe (1856) Dears & Bell 159.

[16] Above n. 15 at 160.

[17] Smith v Tamworth City Council (unreported) No. 4196 of 1996, 14 May 1997.

[18] Smith v Tamworth City Council (unreported) No. 4196 of 1996, 14 May 1997.

[19] R v Stewart (1840) 12 Ad & E 773

[20] R Magnusson, "The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions", (1992) 18 Melbourne University Law Review 601 at 611.

[21] Williams v Williams [1881] Ch D 659.

[22] Brotherton v Cleveland 923 F 2d 477.

[23] Doodeward v Spence (1908) 6 CLR 406.

[24] Above n. 23 at 411.

[25] Above n. 23 at 414.

[26] Above n. 23 at 414.

[27] Above n. 23 at 412.

[28] Above n. 23 at 412.

[29] Above n. 23 at 416.

[30] M Lynch, "Property in Human Gametic Material and the New Reproductive Technologies", (1999) 6 Journal of Law and Medicine 348 at 352.

[31] Doodeward v Spence (1908) 6 CLR 406 at 422.

[32] Stephen's History of Criminal Law cited in P Matthews, "Whose Body? People As Property", (1983) Current Legal Problems 193 at 219.

[33] R v Kelly and Lindsay [1998] EWCA Crim 1578 (14th May, 1998).

[34] D Ranson, "Medical Issues", (1998) 6 Journal of Law and Medicine 16 at 16.

[35] R v Kelly and Lindsay [1998] EWCA Crim 1578 (14th May, 1998) at paragraph 39.

[36] Above n. 35 at paragraph 42.

[37] Above n. 35 at paragraph 42.

[38] L Griggs, "The ownership of Excised Body Parts Does an Individual Have the Right to Sell?" (1994) 1 Journal of Law and Medicine 223 at 226.

[39] The State v Truesdale (1972)13 NC App 622.

[40] J Potts, "Moore v Regents of the University of California", (1992) 86 Northwestern University Law Review 453 at 485.

[41] For example see R v Herbert (1961) 25 Journal of Criminal Law 163.

[42] R v Welsh [1974] RTR 478

[43] D Mortimer, "Property Rights in Body Parts: The relevance of Moore's Case in Australia", (1993) 19 Monash University Law Review 217 at 244

[44] R v Rothery [1976] RTR 550.

[45] D Mortimer, "Property Rights in Body Parts: The relevance of Moore's Case in Australia", (1993) 19 Monash University Law Review 217 at 245.

[46] E v Australian Red Cross Society (1991) 99 ALR 601.

[47] PQ v Australian Red Cross Society [1992] 1 VR 19.

[48] J Potts, "Moore v Regents of the University of California", (1992) 86 Northwestern University Law Review 453 at 455.

[49] J Potts, "Moore v Regents of the University of California", (1992) 86 Northwestern University Law Review 453 at 455.

[50] Above n. 49 at 455

[51] D Mortimer, "Property Rights in Body Parts: The relevance of Moore's Case in Australia", (1993) 19 Monash University Law Review 217 at 219.

[52] Above n. 48 at 174.

[53] Above n. 48 at 174.

[54] Pecar v National Australia Trustees Ltd (The Estate of Ivan Urlich Deceased) (unreported) (96002518) Number 2518 of 1996, 27 November 1996.

[55] Dobson v North Tyneside Health Authority (1996) 4 All ER 474.

[56] Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) (unreported) [2000] WASC 146 (7 June 2000).

[57] Above n. 56 at paragraph 3.

[58] Above n. 56 at paragraph 14.

[59] AW v CW [2002] NSWSC 301 (17 April 2002).

[60] AB v Attorney General of Victoria (unreported, Supreme court of Victoria No 6553 of 1998, 23 July 1998).

[61] M Lynch, "Property in Human Gametic Material and the New Reproductive Technologies", (1999) 6 Journal of Law and Medicine 348 at 352.

[62] Maw v Western Area Health Service (2000) 49 NSWLR 231.

[63] In the matter of Gray [2000] QSC 390

[64] In the matter of Gray [2000] QSC 390 at 7.

[65] R v Human Fertilisation and Embryology Authority; Ex parte Blood [1997] 2 All ER 687.

[66] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

[67] Brodie v Singleton Shire Council [2001] HCA 29 (31 May 2001).

[68] Above n. 67 at paragraph 79.

[69] Above n. 67 at paragraph 227.

[70] Above n. 67 at paragraph 65.

[71] E Jaffe, "She's Got Bette Davis['s] Eyes: Assessing the Non-consensual Removal of Cadaver Organs Under the Takings and Due Process Clauses", (1990) 90 Columbia Law Review 528

[72] Mabo v Queensland (1992) 175 CLR 1

[73] Bentham cited in M Lynch, "Property in Human Gametic Material and the New Reproductive Technologies", (1999) 6 Journal of Law and Medicine 348 at 352 at 349.

[74] L Griggs, "The ownership of Excised Body Parts Does an Individual Have the Right to Sell?" (1994) 1 Journal of Law and Medicine 223 at 224.

[75] J Potts, "Moore v Regents of the University of California", (1992) 86 Northwestern University Law Review 453 at 481.

[76] Mabo v Queensland (1992) 175 CLR 1.

[77] Above n. 76 per Brennan J at paragraph 53.

[78] S 32 Human Tissue Act 1983.

[79] Andrus v Allard 444 US 51 (1979) cited in Columbia Law Review.

[80] R v Vines and Williamson (1993) 70 A Crim R 113.

[81] Bollen J in Anic and Styliano and Suleyman v R (1993) 68 A Crim R 313 at paragraph 6.

[82] Griffith CJ Doodeward v Spence (1908) 6 CLR 406 at 412.

[83] Mabo v Queensland (1992) 175 CLR 1.

[84] Griffiths CJ in Doodeward v Spence (1908) 6 CLR 406 at 411.

[85] D Resnik, "DNA Patents and Human Dignity", (2001) 29 Journal of Law, Medicine & Ethics 152 at 152.

[86] M Neave, C Rossiter & M Stone, Property Law Cases and Materials, 6th ed, Sydney: Butterworths 1999 at 3.

[87] See discussions of these problems in G Hardin, "The Tragedy of the Commons", (1968) 162 Science 1243.

[88] G Hardin, "The Tragedy of the Commons", (1968) 162 Science 1243.

[89] Above n. 88 at 1245.

[90] Above n. 88 at 1246.

[91] J Yeomans, "Judge lashes 'crass' price tag on people", The Australian July 28-29 2001, page 3.

[92] Moore v Regents of University of California (1990) 51 Cal. 3d 120 at 160.