hello um welcome to today's lecture i'm imogen gould i am a professor in medical law at the university of oxford and i'm going to talk to you today about your body parts and the law and specifically do you own your own body parts and should you now you might be thinking why is the question of whether body parts one that anyone would ever ask why would we be interested in thinking about it that way at all and if you did ask it why is it a question that you should turn your mind to why should i even answer it for you who cares if you own them or not does it really matter well what i'm going to explain to you over the course of the next hour is why in fact it might matter very much legally whether or not we own our body parts and why hopefully by the end i'll have made the case to you for why we should um own our body parts and that's the law the approach the law should take so to do this i'm going to talk to you about why people care about the fate of their body parts and why they should care i'm going to give you a sense of the value of those parts and the interest people have in them and introduce you to numerous situations in which these various interests have come into conflict i'm going to demonstrate why it is in fact deeply problematic if the law does not permit the ownership of body parts so where to start well it might help first if i explain to you what i mean when i say your body parts and as i do that i'm going to tease out some of the ways in which we use body parts some will these will be familiar to you some might be quite a surprise and in doing so we'll see why body parts are important to various people so what i tend to refer to as why people have an interest in them so what are they and why are they important well by body parts i mean just that i mean parts of your human body and this might be something like a whole organ that's removed so a kidney this might be during life it might be after death but i also mean human biomaterials and human tissue so blood and plasma hair skin dandruff all of the bits of your bodies that in various ways are removed from an amputated leg all the way down to bone and cells and sperm and over now before the advancements of modern medicine body parts didn't have many uses teeth were used to make false teeth for centuries that's true and hair was used for wigs but for many centuries parts of bodies didn't have a great deal of value at all they and the whole deceased body however were the remaining symbol of a person who had died and hence were treated with care and respect as part of the rituals surrounding death the other main value of bodies as we'll come to see is that they were used for dissection as part of the study of anatomy so this is the sort of thing there's a huge range of pictures of early dissection it was in fact one of the key ways in which of course we came to learn about how the body worked and it's the foundations of modern western medicine we also can see lots of other ways in which bodies have been used now i i don't think these pictures are problematic i've tested them on my husband he said they made him feel a little ick but he was fine but the next picture is a picture of a dissected ovary um that's preserved in the ontario museum um in london and so one of the things that came from this dissection was the creation of dissected bodies which would enable medical students to study their structures and come to understand their workings now the value of body parts and the uses to which they could be put exploded with the medical developments that came over the 20th century discoveries in the field of transplantation the overcoming the problems of rejection meant that parts of deceased bodies could be transplanted into other people's bodies living donations of kidneys and lung became possible and but we don't just donate those we donate blood we don't have plasma bone marrow and post death bone skin many other bodily structures can all be removed and given to others to improve their health or even save their lives so i imagine we're all familiar with that as a use of body parts now biomaterials extend also though to material that we remove or lose in the course of our lives so by that i mean things that we shed fingernails dandruff skin cells and we often remove tissue for testing when a disease is suspected and this is precisely why in fact we give our tissue to doctors and hospitals they test our blood they biopsy what they think might be a tumor and so on these are ways in which parts come out of our body and go elsewhere for all sorts of reasons it's also why at birth a blood sample is taken from almost every child and is tested for a range of conditions like pku which is a means of screening for diseases which occult early we can treat but why would i also be thinking about the loss of biomaterials why have i specifically mentioned that well one key reason is that most of our body parts almost all of them and almost all of our biomaterials contain our dna and our dna has the potential to reveal a great deal of information about us for our predisposition to diseases whether we're carriers of a genetic mutation that causes the disease our familial relationships and so on and our dna as we all know can also be used to match us to samples of our tissue so that's the basis of forensics that's how it works some tissue can also reveal other things about us it might reveal our blood alcohol level or whether we've taken drugs in the past and so these might be valuable to police and others who are investigating crimes and the reason i draw this out is often when we think about biomaterials particularly in the academic literature we really focus on the research use and the transplant use but in actual fact when you begin to think about it body parts get used in all sorts of contexts all over the world and so it's this it's dna and if anybody's ever seen the film gastica gatica that's exactly what they're doing the reason many of those characters are actually disposing of their materials they're very careful about not to leave anything anywhere is because in doing so they'd be leaving their information potentially all over the place and someone could come along and take it and test it and find out things about them that's their great concern so what i think you can see emerging from this is there's a range of interests here we have researchers who are interests we have people who have illnesses are interested in the research that produces treatments but also in transplants the community has an interest in tissue because we want access to it for forensic purposes and criminal prosecutions and so on and we can also say that people themselves have particular interests partly because their bodies are precious to them they're important psychologically but also these privacy concerns are coming out now the medical research council says that human tissue research is crucial to in to increase our understanding of disease it helps us develop new treatments so it's vitally important that researchers have access to tissue because this is what they use as the basis of a lot of medical research and in particular we now see the development of very large collections of biomaterials what we call repositories or bio banks like uk biobank and these are particularly important because they allow us to do particular types of research that are extremely valuable but it isn't just in the public research sphere that we see people using tissue there's actually a big market in tissue so biomaterials are bought and sold all the time and they're bought and sold in a range of ways if you are a researcher you can look for a particular type of cancer tissue and you can order it online you can pay for it and it'll come to your lab and you use it in your research there is a market one research one report valued the global cell line development market at close to a billion pounds and predicted its value to increase over time exponentially so it's in particular it's cell lines the idea of a cell line um is particularly valuable now these are particular types of tissue which once they've been manipulated they're able to self-replicate indefinitely and so they're a particularly vital resource for research and you might actually have heard of some of them and the reason is some are so important they're both famous but also infamous so one that you might have heard of is the hela cell line which was derived from the cells of a woman called henrietta lacks it was a vital part of the development of the sulk vaccine for polio but it was also taken without her consent and her family have in the years subsequently really fought the use of this but it's widespread throughout the world hilar is one of the most widely used cell lines similarly the mohs cell line this was again a really important cell line that was created without proper consent from the person whose cells were used and that was the basis of litigation in the 1990s when the man who discovered that his tissue had been used without his consent without his knowledge for this actually brought a claim he described himself as having thought violated by this he was offended he was also offended that the researchers had patented it and were set to make large amounts of money from it and he was excluded from this so human parts can be valuable and when something is valuable and also scarce we see demand we see demand emerging so like the body snatches of the 18th and 19th centuries what we see is that researchers and medics on occasion have taken it without consent or at least what we see is this market stepping in this demand being met by people supplying it now some of that supply is absolutely legitimate there's no question that's the case but my point here is that it isn't a simple situation it's one in which there are complex interacting interests and a desire to possess it and to use it now there are completely different situations in which tissue is used in which you might not think about so an entirely different one is the commercial context in which there are the creation of artistic works from body parts so if anybody's ever heard of mark quinn he makes models of his own head and of his family's head from his own blood and one of these sculptures sold for three hundred thousand pounds in 2012. another example is gunther von hagen's body worlds body worlds is um it's a show where von hagen's developed a method for plastinating human bodies preserving them so if you've ever been it is essentially a museum for a show full of human bodies i've tried to choose a slightly less confronting image but their skin is removed you can see their internal workings and what he says is his goal was to educate but there's definitely a bit of the pt barnum about him he's certainly a showman as well there is this this dimension there this entertainment dimension to the use of bodies there for sure similarly performance artist orlan she would have surgery performed on her and have it filmed and she would then make artistic works from the pieces of tissue that removed from her body jenny holzer is another artist who's using human bones in her work there are indeed even cases of quite scandalous uses of bodies um one particularly unpleasant case from a number of decades ago used preserved fetuses in earrings but this was the police were involved because it was a matter of public decency um because it was so problematic because these uses of tissue can also be distressing and they can be confronting to people and offensive now one of the other collections or uses of tissue which you might not be aware that is particularly distressing is is the collection of indigenous remains in museums where for many years in the 18th 19th century body parts from indigenous communities were taken from those communities either disinterred or in some cases even taken from people who were killed for their for their body parts and brought back into collections and for quite some time now there have been measures taken moves being made by these communities to have those parts repatriated to them um to bring them back to rest so what i think this shows up is that there are not just small questions about researches but in fact we have this panoply of ways in which tissue is used and this huge range of people who have different interests of different kinds and when we have complex interactions of interest of course we're going to get conflicts and what this does is it raises a range of questions that i think the law needs to be able to answer and what i'm going to show you is i don't think that it always can so one question would be who is entitled in this mix to possess that tissue can the tissue be sold if it is sold what are the rules about that can it be bequeathed can i pass on my kidney to you through my will can other people access my tissue to get access to it so if someone wants to check paternity can they access a tissue sample and if so when and how what sorts of rights do family members have to tissue um when they might need access for their own health so to find out which particular mutation runs in their family for a particular disease and who should share in the profits of any profitable research does that matter is that a matter for property law so fundamentally what i'm saying is the question we need to think about here is what control or people to have over their body bodily materials their body parts once they're removed from them so let's see how the current law does answer these questions and how often i think it fails to do so now i'm an historian as well as a lawyer so i always think it's important that we want to see where the law came from but it's particularly important in the context of how the law regulates bodies uh body parts as i said for a long time bodies and their parts didn't have any obvious value and aside from their importance as a symbol of the person who lived and as a means to learn about the workings of bodies but there wasn't much else of value so we don't see a lot of case law but we have some unusual cases that really set the foundations for the law when we came into the 20th century when things really exploded and so it's important to understand those origins to understand um what the questions are and what the debate is so let's take a look at the section for a moment and because this in part is the context in which these early cases emerge now for a long time dissection was regarded as a desecration of the body across cultures but particularly in christian england for many centuries the idea of dissecting a body was offensive to people but at the same time medical students doctors were wanting to learn about how the body worked and needing access to corpses to cadavers to body parts to study them and learn so from the 14th and 15th centuries onwards the study of medicine was increasingly driven by this desire to access bodies and so what we saw there was the first real clash between demand and supply now in england the practice of dissection by the 18th century was widespread but there wasn't an easy supply and some of you may well know where the supply came from it came from the theft of bodies from grave robbing and eventually when burke and hare and others entered the fray from the murder of the living to meet this ongoing demand there wasn't any way that the law was providing any supply so it really was very much a black market that was emerging here now we saw the passage of the murder act in 1752 that allowed judges to sentence convicted murderers to be dissected as an extra punishment in one way it gave a bit of a supply but the problem was it made the section of bodies even more problematic it made it seem like not only was it a desecration it was now really firmly constructed as a punishment in 1828 parliamentary select committee met to try to deal with the problem what could they do about this this great problem of body parts and bodies being stolen from corpses they spoke to a number of retired resurrectionists as they as they called themselves one said that he he stole more than a thousand adult corpses um and almost 200 of children over the course of four years while prominent um surgeon at the time specially cooper boasted that he could get the corpse of anybody he wanted so if he died he said i'll be able to get you if i want to this the next year burke the famous body snatcher was sentenced and eventually executed still didn't make much difference though they didn't really deal with the problem and it took um the violent death of a 14 year old boy in 1831 to really spur the law um to deal with this problem um and what they did was is they produced what was eventually called the anatomy act so the anatomy act of 1832 and this tried to meet the supply it tried to meet this demand by saying that those in lawful possession of an unclaimed body could hand it over for study for dissection as long as no relatives objected now this seems like a bit of a reasonable solution in some ways perhaps this is done with consent no one's objecting but the reality of course was that these unclaimed bodies were the bodies of the poor because they're unclaimed because people couldn't afford to bury their deceased so what we see here is the replacement of one unpleasant solution with another so we reduce the need for the resurrectionist but instead we use the bodies of people who are so poor that they can't even bury their dead it did eventually put an end to the black market in the trade and bodies it's true but we wouldn't say that it was a good solution that act remained in force until 1984 but the legislative story is only one part of this story um and the common law steps in as well from the 17th century on by that i mean decisions made by courts and it lays another vital part of the law's foundations so our journey through the case law begins in the 17th century because it's here we find the origins of a really fundamental element of the common law position on the status of human tissue and that is that a corpse cannot be the subject of property rights what is often called the no property in a corpse rule you cannot own a corpse now the rules origins are murky its foundations are dubious and arguably as we'll see it's actually been undermined by recent decisions but the law remains in flux it's very difficult to say what the current law is with any degree of certainty but it remains good law for now so the origins lie in a case from 1614 we call it hane's case and in that case william haynes having disinterred four bodies he removed the winding sheet so he took from them the cloth that they were wrapped in and then he reinterred the bodies now the question in that case was who owned the sheets because he was being charged with theft essentially and to do that you had to know who they've been stolen from did somebody have ownership of them that he in taking these had therefore interfered with and the court said the property vested in whoever had owned the sheets before they buried the bodies and he was found guilty of petty larceny and of course as the bodies were replaced he clearly hadn't stolen them but despite this the case was reported by legal commentators of the time and for many years afterwards to mean that um that the corpse itself could not be property now the basis for this misrepresentation probably stems from some comments in which the court says the property of the sheets remains in the owners that is in him who had property therein when the dead body was wrapped there with for the dead body is not capable of it a dead body being but a lump of earth has no capacity and it seems that this was misinterpreted partly because they simply didn't interpret it correctly but also because some of these classical legal scholars like sir william blackstone already believed that this was the rule so these were natural lawyers they believed the law was simply this was the law the corpses simply weren't a fit subject for the rules of property it wasn't right that they could be owned and the law shouldn't say that they could now the 18th and 19th centuries numerous cases came to the courts concerning dealings with buried and unburied bodies body part use wasn't really an issue at this stage and we don't have time to consider them all in all their complex dimensions but what's really clearly recognized throughout the 18th and 19th centuries is that in almost every case a body couldn't be owned it wasn't possible to have property rights in relation to them so i'll give you a taste of the kinds of cases that the courts were dealing with at this time so one from 1749 is the case of exoplanet handicide and this was an action for the return of the body of stillborn conjoined twins dr handyside was a male midwife and he delivered the twins and when they died he took them with him after birth and he displayed them as a curio the twins father not surprisingly brought an action in trova for their return what he wanted was the body's back and the court found in 1803 the court found sorry in 1749 that dr handyside should return them to the father for burial as no person had any property in a court so they're saying the doctor couldn't keep them he couldn't sustain this claim that he owned these bodies that simply wasn't how bodies were dealt with so you can see that the property is actually doing some good work which we'll we'll come back to some years later there was the case of aaron lin this was a case in which there was a theft of a corpse from a graveyard dissection so the first of our body snatches cases and reference was made here to the fact that a body couldn't be owned that it was not the property of anyone so this position was repeated and repeated throughout these cases there are many instances where people take bodies for all sorts of reasons in the 19th century in particular often it was disputes about how they should be buried where they should be buried should they be cremated so people disinterring bodies to take them for cremation and what comes out of these two things by the end of the 19th century is one that it can't be owned but three cases do establish one thing that is important and it's the beginnings of of a slight shift in the law and that is that you can have the right to possess a body for the purposes of burial and this is how the law still thinks about bodies that someone usually the executor others potentially can have a legal right just to possess the body for this particular purpose so a type of property interest you can have that now you might wonder why i'm laboring about this distinction between owning a body and possessing it but they're not the same thing now the distinction is really important in the law of property it's important here it's important as we go on now to fully explain this would take a long time but i'll give you a simple analogy that can probably help us see the distinction between owning something and merely having a right to possess it so think of an article of clothing let's say it's your suit now you would say and the law would agree with you that you own the suit it's my suit you bought it you're in control of it you can wear it you can sell it you can throw it away you can do as you like with it i however can't do anything with someone else's suit so if it's your suit i don't get to wear it i don't get to touch it i don't get to sell it i don't get to do anything with it it's yours and if i try to you can call the police and i can be charged with theft if i've taken it and you might bring some civil claims against me as well that's what ownership does it keeps it exclusively to the owner i can keep you out of my property and you can keep me out of yours but what's happening when you take it to the dry cleaners well you hand it over and the dry cleaner hangs onto it and they're shop for a day or two they clean it and when you pay you get it back are they the owner for a little while well the law says no but they're not a thief either what they are is what we call a bailey what i've done is i have given it to them for a certain amount of time to do certain things and there will be constraints on what they can do we call this a bailment and they hold it in that way and what it does is it gives them a right to possess it for a purpose and it's this concept of you can lawfully possess something while not becoming the owner that's a really important distinction that property gives us and we'll see later on when we come back to this idea of balance why it's so important and that's what we can see partly is happening with bodies being buried is you're being given someone has been given a right of possession for a certain amount of time for a purpose but they don't own it so this is where we leave things at the end of the 19th century no ownership of a corpse but there's a right to possession for a particular purpose so what happens next well at this point um what we need to do is move from the english courts and go to the australian courts and the reason for this is an extremely unusual case comes the australian high court that sets the stage for big developments fundamental changes arguably in the english law later on in the 20th century the case is called doodle wooden spence and it's like xlb and handyside sadly yet again we have a case of a plaintiff who has in a jar the corpse of an infant with two heads who had died and had been preserved in this jar he'd been exhibiting this around australia and the police charged him with indecent exhibition of a corpse and the policeman took the jar and the body and the plaintiff the showman tried to get it back the police gave him back just the jar and he brought an action saying you need to give me back the body as well it's mine i own it that was his argument now he brought a claim in an old-fashioned accident called destiny but what he had to show to succeed was that it was his property because the law there required for this action that you showed you owned it and to do that he had to show that this body was property and his property so for the very first time really the courts had to deal head on with the question of is it property because if it wasn't then this action had to fail because it didn't work because it rested on the idea that the body was property and the australian high court found that it could so here we had had centuries of the courts in england saying no you can't own a corpse it's not the right sort of thing it doesn't fit in this category and the australian high court says yes you can now how do they get to this view well one of them justice higgins said no you can't you absolutely can't own bodies and so he dissented justice barton made it clear that he agreed that there was no court no property and a corpse awaiting burial he however took the view that this one could be owned but he did so on on the basis of really pretty offensive views which where he simply just didn't think that this was a human body he didn't think that it was a fit subject for being regarded as a person because it had two heads and essentially in a view that's obviously an anathema to modern thinking he thought of it something quite other and so we probably wouldn't listen to his opinion either but the key person whose opinion made all the difference is chief justice griffith and what he said is that it doesn't follow from the mere fact that a human body at death is not the subject of ownership that it's incapable of ever becoming the subject of ownership and what he said was it's quite clear that there are plenty of bodies and body parts that are in fact owned and treated like property all the time he talked about mummies and prepared skeletons and skulls and other parts of the human body that are kept and used and possessed and so he said it must be the case that these are at some point able to be the subject of property rights because we're treating them like property with this point so he didn't say the rule didn't exist but he said we need to explain what's happening here and he offered an explanation that's still enforced today it's now enshrined in legislation in this country and it affects the outcome in numerous cases that we're going to look at and what he said was is that there will be occasions when you can gain a right to possession at least if something is done to a body that changes it from being a body that's awaiting burial into something else he's saying there's something that could be transformative and he says it's the lawful exercise of work or skill he says if we work on a body or a part of a body we can change it from something that is a corpse that needs to be buried and that's what will happen with it into something else we differentiate it and he says if you do that lawfully you will gain these possessory rights he doesn't give an exhaustive enumeration of all the circumstances where this happens but he opens up the idea that this is how we can explain it and this is how the law can say this is what it looks like when we would accept that somebody can own part of a body so this was a huge departure and it created the basis for what we now refer to as the work and skill exception to the no property rule and it offered a solution that we're going to see what it achieved in the english courts shortly but this was groundbreaking in some ways it's informed by locking in ideas about working on things that have no owner but really what he was trying to do was give a pragmatic solution um in a situation where otherwise you wouldn't have an answer you would end up with absurd situations and that was one such that he was saying there are plenty of instances where things are demonstrably treated like property we need to find a way for the law to explain what's happening so that was the law in 1908 not a lot happens in the common law for quite some time in the 20th century we do see some change legislatively the human tissue act 1961 was passed creating quite a basic consent model so running in tandem we have these no property cases we have dealed with then we see the legislator can beginning to create ways to deal with tissue and they're doing this because we have this burgeoning science of transplantation um medics are getting better at succeeding we're on the cusp of seeing widespread organ transplantation being possible from the late 1970s onwards and we're also seeing an expansion in the use of tissue and research so they pass the human tissue act to manage this and it provides a very basic consent model it simply essentially says that bodily tissue can be used for therapeutic purposes treatments for education and research doesn't define these and this can happen if someone is lawfully in possession of a body or parts they have no reason to believe that the deceased or their family would object to the use also they can give their consent so you were able to donate you could consent but also they could use it if no one was objecting so you can see how the origins that are lying in the anatomy act it's a step beyond but not a big step that act was widely criticized sadly we don't have time to go into all of the organ retention scandals of the late 20th century but this is what laid the foundations for those and if people have questions about that we can talk about them at the end but certainly this sort of very thin consent model with not much detail was part of the part of the context that led to the retention of of organs um and tissues and so on that many of you will probably be familiar with despite those problems however that act remained in force until 2004. so that was the law we have this thin consent model and we have this odd cluster of cases that don't tell us much so by the late 90s really we have this patchy piecemeal not particularly effective legal framework we don't really know what biomaterials are in the law and in a way it wasn't it didn't matter terribly much but what we'll see from these cases i'm about to tell you about it came to matter very much indeed now though i'm going to look at two cases there are more but but for interest of time we'll look at two um the first of these is the case of dobson and north tyneside health authority from 1996. now this is a case in which the woman deborah dobson had died she had a brain tumor and she died in a hospital run by the newcastle health authority and her body was autopsied and when they did that they took her brain and they preserved it in paraffin and they made slides from it so they used these to work out what had happened to her now her family later accused the hospital of negligence in her care and what they needed for this claim was they needed to show this negation they needed proof so they tried to get access to the slides to the brain that they knew had been taken they knew she'd been autopsied they knew things had been retained and when they tried this the hospital said well we've destroyed the tissue we've destroyed the slice we've thrown them away now crucially what they do is they then decide they will bring an action against that hospital for doing that for destroying the slides destroying the tissue because effectively they've destroyed the evidence they needed and the way they argue this is they say those slides they were property they were our property right you were baileys you were holding it like the dry cleaner you were holding you should have kept it safe and in not doing so you have done something wrong it's the gist of their argument here now to do this to succeed in this essentially saying that they had converted them slightly unclear from the way they're arguing the case to do this they have to show that that brain was property because this bail relationship it all rests on being about property and if the thing you're trying to talk about isn't property it all collapses because these are legal devices that only relate to property so they had to go into court and say this preserved brain's property you can probably guess how they tried to do this they argue that doodlewood and spence meant that the preservation of this brain had changed it it wasn't a corpse awaiting burial anymore it was now something different it had gone undergone a process of human skill work and skill had been applied and in doing that and preserving it it becomes something else that had become property and therefore this whole argument could run now actually lord justice peter gibson rejected doodwood as a prop as the basis for this proposition he wasn't prepared to accept it and there's there's legal arguments as to why that might have been right but he still accepted that the no property rule existed and he still accepted that in fact there was a work and skill exception he just didn't accept dudable as the origins of it which was an unusual position to take but that's a position he took but then he said he felt that this sort of preservation wasn't the sort of thing that work and skill exception meant it meant other things um this was not enough work and skill whatever would fit it he doesn't really say but what he says is this doesn't fit and they lose two years later the court finds the courts find themselves dealing with another case in which a similar question arises but they deal with it quite differently so this is a particularly unusual case i mean all of these cases where people are dealing with bodies there's often quite a few of them are unusual but this one i think is is the most unusual and you might have heard of it so in this one anthony kelly was an artist and between 1992 and 1994 um he he gained permission to go to the royal college of surgeons and to draw um some of the sort of specimens that were there like the the ovary that i showed you before now he befriended a technician who worked there neil lindsay who over time over the course of these three years removed specimens for him so remove these jars that had dissected parts of bodies in them he made casters and he did all sorts of things he kept them in his home he buried them around london and eventually he was found out he had an exhibition the police were involved they found out and he and lindsey were charged with theft so they were charged under section four the theft act and of course the theft act is about the taking of property it's about infringement of people's possessory rights to things and so what they argued was is they said well it can't be a theft because theft is about property and we all know that bodies can't be property because no property and a corpse therefore we can't be guilty of theft because we didn't take any property and the act doesn't apply i like to think of them thinking it's a gotcha argument right we've got it haha we've escaped from the law but you might also be thinking that sounds like a what we might call a technicality like getting off on a technicality and you'd be right that's exactly what you should think and in fact the court of appeal wasn't convinced by this at all they said yes there's no property in a corpse but they also accepted doodle would help they said actually sometimes body parts bodies are property or certainly people at least have a right to possession so they like the course in dobson work through the work and skill exception but they came to a different conclusion they said in fact because of the expert dissection of these um pieces of tissue and the preservation techniques that have been used they had in fact gained a right to possess them at least sufficient to say that when someone took these specimens they could be guilty of theft they were capable of being stolen because the royal college had enough of a right to possession that when someone took it away from them they had in fact infringed on that in a way that constituted theft kelly was convicted and sentenced to nine months in prison so they didn't succeed so what should we make of these cases well i think a big part of their importance is that they show what happens if we don't see biomaterials if we don't see body parts as property because when we do that even though body parts are corporeal things they fall outside the rules that we use to deal with interactions with things or our relationships with one another about things which is how property law thinks about about things it doesn't think about your relationship with something itself it thinks about what are our relationships as people in relation to the thing and in this context we could say well the royal college had a right to possession it could defend against everybody else in relation to these specimens that's the way it's thinking about it and i think what they show is that it is absurd it produces all sorts of surgeries if we don't see body parts as property so what if someone had gone into the sachi gallery and just taken mark quinn's self would that have been okay if someone goes to body worlds and tries to take some of the plastic bodies would that be okay of course it wouldn't we would mostly think that was problematic we would want to be able to say that the people who produced those and made them and display them have some right to possession at least that they can defend against people who might try to take them so this is the first strand of why i think we need to regard bodies and their parts as property because often the law needs them to be this way so that the rules we use to regulate things can be used to address the problems that arise if people try to dispossess one another there are in fact numerous other cases where in fact had the courts refused to see body parts as property and found ways around this no property in a course rule we would have seen all sorts of other absurd results so in the 1970s there are a number of cases where people give blood samples and urine samples to the police and then they destroy them so in one um the defendant gives a gives a urine sample and then he quickly tips it down the sink right so he's done what he's supposed to do but then he destroys it he's charged with theft um an iron rothery similarly gives a blood sample and then he takes it away from the from the police station in an attempt to sort of get away um and in both they're charged with theft the court in those cases doesn't even think about whether the no property rule applies because it's so self-evident that it must be property within the concept of the theft act for to make sense of what happens here and to ensure that these people who have undermined the police's ability to take tests of their tissue aren't don't succeed in that we also see an australian case of roche that was the case in which the court needed access to a tissue sample to determine paternity in a particular case for the purposes of dealing with a will and in that case the rules of the court specifically said the court can access any property it needs to determine a case and i was arguing that case well that doesn't include tissue samples because they're not property and the court simply says look it's just good sense to ignore this no property in a corpse rule and see them as property because of course we need access to these preserved samples because of course we need to determine paternity and it would be ridiculous to say we can't do that purely because of this old-fashioned rule from the 18th and 19th century so this is a rule but this is i think an argument based on expediency the law needs us to conceptualize body parts as property to do its job a lot of the time and to arrive at the kind of results we would like to think are correct now the high point of this expediency is the case of yearworth and north bristol nhs trust and this is where the courts really hit a wall where they have to get around it by by using property concepts and had they not the men in this case would have had no remedy and that would have been clearly unjust and it's the first time the courts had to deal not just with possession of biomaterials but damage to them so a different question we've seen lots of dispossession cases but this was one where someone actually damaged somebody's important buyer materials and if you think about it that has to be another important question for the law to deal with what happens if you damage them what happens if you go into body worlds and you and you walk around and destroy things what happens if somebody goes into a research lab and destroys tissue what do we do about that well this case hopefully tells us part of the answer or it certainly illuminates the problem and why we need a solution to it so in this case all the men have been diagnosed with cancer and prior to undergoing treatment and they had they provided sperm samples which were stored to preserve their fertility in case the the cancer treatment destroyed their fertility so it's important to them these were valuable samples for them this tissue was important to them personally in a way that it was irreplaceable and what happened was those samples were destroyed they were allowed to defrost due to negligence on the part of the trust that was holding them and the men suffered exceptional levels of distress they suffered depression they were deeply psychologically traumatized by this because they thought that they could no longer have children they'd relied upon the protection of their valuable samples and they'd been failed now what they did was is they wanted to claim for their psychiatric injuries they wanted to claim for the depression and the harm that this has done to them but the law on psychiatric injury is byzantine to say the least and where you have a psychiatric injury that doesn't flow from any physical injury the laws are very very strict and quite constrained so if i'm in a car accident and i'm physically injured and i'm also suffer ptsd that's quite simple one flows from the other that's fine but when i merely suffer merely suffer psychiatric injury with no other physical harm the law only allows me to succeed in a claim against someone for that when they induce it negligently if i was in fear of my life and that's what did it so if i'm a primary victim or if i see someone who's a very close loved one be harmed only then pretty much can i succeed so they were left in a problem they didn't fall into those categories so their next option was to say well did they suffer a personal injury so one of the questions the court thought about was if someone's tissue is taken from them if their sperm is removed and i damaged it is that a personal injury and the court said no this would do violence to the notion of what a personal injury is personal injury is you cut my hand you hit me on the head they talk in that case about this idea well what if what if all right what if what if you're in surgery and you are taking tissue from one part of the body to put it somewhere else when i was taking a skin from from somewhere say from my hip to put it on my arm and it and on the way you take it off and you drop it on the floor and damage it is that a personal injury so they kind of wrestle with this but they end up saying no no no no no that's too far the only person that you want is attached and if it's not attached it's something quite different i'm not sure what it is but it's not that so they reject that so you can see these men are sort of hitting walls everywhere the law's just not letting them and because the law works by categories and works by rules and works by principles and sometimes a situation arises and the law doesn't have a category or a principle that works for and that's what this case is about so they were stuck and they didn't have a contract either because there was an nhs hospital that was holding them so they couldn't even say well you breached the contract which would have worked because you can have contracts that protect you against distress and then you can claim for the distress yourself when your contract is breached couldn't do that they had what we like to call there was they like to call a lacuna right the law had a hole in it and the court had to fill it because clearly these men have been harmed and clearly they deserved a remedy and the answer lay in property so what they said was all right all right what if the sperm's property what if it's been preserved somewhere or what if it's property in some way if that were the case the trust would be a bailey and the trust has been negligent so they've breached the availment agreement and that's the way the court reasons and they find this way to say haha well if that's true we could then take a step sideways and say well you've breached the bailment we could look at contract law which has awards for people who are distressed when people breach their agreements this is a very dubious step it's been highly criticized and we could give you the discretionary and contract law to make you feel better for your psychiatric injury and that's what they do now i and my colleague miriam quigley have criticized this as many others as in this is this is some legal maneuvering like it really is and the reason they're having to do it is precisely because the law didn't produce a solution for this really clear harm to these men but the way they achieved it was property by calling that body part property by calling the sperm property they found an answer so that was the leap that they made so you might think from all of this maybe if you're convinced by my arguments you might think by now well why is anybody arguing that tissue should be anything but property seems clear it seems very necessary but in fact this isn't the approach that the legislature takes so the old 1961 human tissue act was replaced by the 2004 tissue act it doesn't take a property approach it's a consent based model it's a much more well-developed really effective consent model it's really detailed tells you what consent concept what constitutes consent gives you lots of situations in which it explains what to do and it's a huge step on and this was the reaction to the organ retention scandals of the latest 20th century so in that sense that's good it preserves the work and skill exception that's fine but it doesn't go wholeheartedly for property so why is it that people would resist this approach well i'll give you some of their arguments and then i'll tell you why i think they're wrong well one of the reasons is that people say body parts are special they're not like other things they were part of someone who lived someone was unique someone is important to people and it seems wrong to people to say i'm going to treat a body part in the same i'm going to treat a pen or a clock i'm going to put it in the same category as pins and clocks and cars and tables that seems wrong and in a sense that's appealing for other people they think that the idea of commercializing body parts that's what the nub of the problem is they think it's wrong to sell it's wrong to put markets um it's wrong to allow markets and organs it's wrong to allow my blood or my plasma or my hair to be sold sometimes that's simply because people feel it's ick sometimes people just think it's wrong the best explanation i think is margaret raiden who's a an american academic and she says well part of the problem with doing that is when you put things that are human into a market you make humans fungible you make humans things that are commensurable with money i'm exchangeable for money it's how we might explain what's wrong about prostitution you're making me tradeable for money and that's really not treating me as special because i'm just i'm just exchangeable and she says when we do that then we begin to to lose our sense of the specialness of persons we erode that sense that human beings are important and special and you shouldn't be able to buy them with money and so people have used her theory to say this is this is what feels wrong about commercializing body parts they should remain special we should think of them as being special and important for others it's things like organ donation should remain a gift so thomas murray is an american philosopher who says look gifts of the body have to stay gifts it's what bonds us as a community it's what pulls us together the fact that i give and you receive and that's important and that if we allow ourselves to sell our organs all of that that binds us as a community gets lost and that that's a terrible loss and i think there's a lot to be said for both of those arguments but the thing here is you can have property that you can't sell property doesn't necessitate sale i can't sell you prescription medications i can't sell you a handgun right we can control what is saleable but still regard them as property so we can sever those two concepts i think i also think this idea that bodies are sacred and important and valuable is absolutely true in fact i'll give you lots of examples where bodies were absolutely valuable but in my view property is good for that because what it does is it allows us to protect things that are important to us because it tells us who has the right to use it and possess it and destroy it but it lets me exclude you so that way i can say my wedding ring you can't take it it is special it is important to me and i can exclude you from it property actually enables me to express my feelings of strong importance about things precisely because it lets me exclude other people so in fact it's what we would want to enable us to protect that sacredness and in fact if you think about it when you give me strong control over my severed body parts you're reflecting the strong controls the law gives me over my living body laws about rape and about assault are all about keeping other people out of my body and i think property is an extension of that once that body part is taken from me it's reflecting the same same idea that my body is special to me or be it differently special but still special so those are some responses to those concerns there are however some slightly better arguments than that and one of those arguments is that one of the problems of property is it also might give us too much control so yes i might protect a researcher and their tissue becomes their possession and they've got stable possession they can do their research and they're not going to be disturbed by me that's great but it might be that sometimes some people have so much control over tissue that it's a problem so what if i transfer my tissue away to a researcher i give it as a gift to her and then i change my mind too late just like when i give you a birthday present i can't take it back i've made a gift to you in law and it's not mine anymore it's yours that might be too much control particularly when we remember that tissue is special it's got my information in it you could learn all sorts of things about me and i might not be able to stop you anymore so the key i think argument that might undermine me is this idea that maybe property gives too much control its strength is its weakness and i'll give you two examples um briefly because we we're getting close to time one of those is an american case called colovito and this is a case in which a man called peter lucia died and his widow tried to give both of his kidneys to his friend who was in end-stage kidney disease now the friend only needed one kidney but he wanted to make sure we want to give him both the organ donation network didn't allow this and so what they did was they gave one to the friend and the other was allocated elsewhere but the one that went to the friend turned out to have an aneurysm and it wasn't any good so he then uh later his widow then claimed when he died um that he should have had both and conceptualized his property the kidney was his friends the friend gave it to him that was a transfer of property it should have been his both of them the friend was allowed to do that should have been allowed to do that and the court in that case says no partly they just don't think that organs should be property for lots of reasons but the particularly important argument here is they say that's too much control for one person to be able to conceptualize them a property and do whatever they like with them no that's wrong because that undermines our ability to share organs in a way that helps everybody that is efficient that allocates them so that the most lives are saved and the property the kind of strong controls that property would give there would actually undermine a really morally important thing that we're doing in the community and i think that's a really convincing argument another is the case of catalonia and the university of washington and this is a case in which william catalonia was a researcher and a surgeon and he had established a biorepository of tissue particularly prostate cancer samples from men that he treated who had prostate cancer and he went to move to another institution and he wanted to take the bible prosperity with him he thought it was his take it with me washington university disagreed they realized how valuable it was and they said no it's it's ours we own it you can't take it and the interesting thing for our purposes is he then wrote to all the donors and he said to them can you tell the universe you could give consent for me to take your sample with me they did thousands of them didn't matter because the court said well actually washington does own the repository we're going to treat it as property their reason is quite confused and confused confused and confusing but they say yes they own it and when the men donated they made a gift and they gave up all of their rights to their prostate tissue so they don't have a say anymore because they gave it away they had all the control but what happens when you give something away when i give you a gift or i sell something i go from everything to nothing and that's what happened and so the men didn't get a say and washington retained the buyer at poster even though these men wanted them wanted to help catalonia wanted him to take with him they couldn't do it and that i think is the other side to this is that sometimes maybe property gives too much in the same way in a fit of peak i go and pawn my wedding ring i'm furious with my husband that's it we're done we're done we're done and i do that and the next day i think oh no i feel dreadful of course i want it back but it's too late someone's bought it that's the flip side of properties i don't have an option anymore it's too late i had all the control then i had none of the control and so maybe you think that that's too big a jump now i don't take that for you and i'll tell you why in a moment but what i think we need to see here is that when we're thinking about how to deal with tissue what we need to do is to think about what's most important partly and which problems do we need to deal with and partly i think we need to make sure that we ensure that people have legitimate control of tissue have that possession have that ability to use it protect it we don't want them to be vulnerable we don't want biobanks to be vulnerable we don't want things like markquen's self to be vulnerable we don't want bodywork to be to be vulnerable we also don't want to leave the law in a position where it has to resort to legal fictions to get to sensible outcomes and we need to not be in the dark about what is happening at various points when tissue is being used so we need an answer the question of whose is it who gets to choose what happens to it who can give it away and what happens when they when they do so and i think property does that does that best i think the key thing to say is that yes there's a lot of benefit from a consent model i mean one of the good things about a consent model in the hta is it gives us a really careful model about thinking about what is happening when you transfer what do you need to know what do you need to tell people when it happens so it adds in the thing it wouldn't have this problem that you have in catalonia because you have to go through this process of getting informed consent and really telling people what is going to happen so it isn't the property has to undermine that but what i think it does is is it does more than consent because it tells us what happens at all these transfer points so i think in a sense the reason that property is important is it answers lots of questions that we wouldn't otherwise have answered and i think that it gives us an answer at any point in time because one of the key final things to understand about property is it's based on the idea of relativity of title so we always know who's got the best right of possession so initially my pen is mine if i leave it here if i leave like i forget it i lose it and someone comes along now it might be the law says well actually claire and gresham are in control of this space so it's theirs they've exerted possession over it so claire's allowed to possess it but if i come back and say can i have my pen back claire has to hand it over if i drop it in the street no one's controlling the street so if someone picks it up and finds it they get to have the best right of possession as a finder but if i come along and say excuse me i just dropped my pen you have to give it back but if i don't turn up for six odd years then you can keep the pen and you're safe right what what the law does at every point is it tells us who's got the best right of possession who's got the best right to this relative to everybody else it fills in all the gaps in a way that consent doesn't consent just tells me what happens when i say declare you may borrow my pen for a while but it doesn't say what happens if it's not property it doesn't say what happens if claire gives it to one of you and then you walk down the street and you hand it to somebody else property tells you that but consent doesn't it only tells me about our relationship with claire and that's a gap so for me property is the obvious answer the final question to think about is whose and this is the really interesting question is it mine is it yours is it a researcher's would it be better as some people argue that the community owns it that we are in fact one of my colleagues at oxford argues that we're all part of the same biomass that our bodies interact with one another and in fact we should see bodies as a community as a part of the community and we should own them communally or at least we should have a system which enables a much more sharing um community-oriented system so i have a great deal of sympathy for um so it might be you say well actually don't make the person from whom the body parts were taken the initial owner that might be your view it's not my view but it but it could be yours i think the other thing we can say is that probably can we can ameliorate some of the problems of property by simply placing rules over the top of that system so we could say it could be used for some purposes and not others we could say that when i transfer tissue to someone it's a bailment it's not a gift so i've always got a bit of control we might say there's certain things that you can't do to protect my privacy you can't test tissue that's from a person whether they own it or not without that person's consent so even though i've given it away you can't do dna testing on it without the source's consent or you can only do it it's de-identified all of those problems i think we can fix but fundamentally i hope i've left you with the idea that there is a good reason to think of what think of our bodies as owned in some sense it does make sense it's actually in my opinion vitally important thanks very much our first question is funeral directors and coroners have possession of corpses for particular purposes are there any reported cases legal or otherwise where problems have arisen as a result of this so not so much in this country but certainly in the united states there were some serious problems with people with um mortuary staff taking parts of bodies selling them and one of the key problems was that some of those bodies actually people had died of cancer and they supplied tissue into the biomaterials market that was infected with things like cancer and diseases and it was very problematic and very distressing so certainly there are there have been problems okay um in the 1749 decision how did they define the corpse then and on what ground was it returned to the father were they returned to the father was the po was was the public policy medical scientific development ground available back then thank you no so essentially that was a case where they agreed it that they that they settled in a sense and gave it gave it back so they came to a reasonable solution in reality we don't know a great deal about it it's very sketchy reporting my first question is if we're talking about owning body parts wouldn't it make sense that if somebody made a will can you put that my body is property in the terms of the will and the second case is if something does happen later on and you get an amputation you get an artificial important would you need to change the will so legally at the moment you couldn't do those things so you couldn't say i'm going to be creative my body what you can do though is use the provisions of the human tissue actually allows you to make certain decisions about what's happened to your body so you could donate it to research but you can't make conditional directed donations of your organs necessarily say i only wanted to go to people who wear red hats on sundays or something you can't you can't do that so you can make certain decisions but not others professor gold's next lecture is on freezing eggs and delaying fertility law ethics and society and that's on monday the 11th of april at 1 o'clock so please do join us for that and let's thank professor gould again