Finally, and I would suggest significantly, seeing the body as property would help us to avoid future difficulties in medical law. Consider the following example. It’s the year 2300, and artificial lungs that are biologically the same as real human lungs can be created for transplants. They are created using a process that doesn’t involve the use of anyone’s cells (so no original ownership issues arise), and they are compatible with all people. A company produces them and sells them to hospitals in the same way that various treatments are sold to hospitals today; thus, they are property and capable of ownership. A man needs a left lung transplant, and so it is replaced with an artificial one. The operation is done perfectly, and, in a year’s time, each lung is functioning as well as the other. If the law in 2300 is the same as it is today, we have encountered a bizarre legal result: his right lung is owned, while his left lung isn’t. Even though there is, in this case, no (or a negligible) distinction between the lungs in terms of biology, even though they sit side by side in his body, and even though the body relies on them both equally, they enjoy different legal statuses. It is hard to see why this should be, and so it is suggested that, for future legal coherence, ownership of the body should be recognised. An alternative approach to this problem would be that, in such cases, we cease to recognise the artificial lung as being subject to property law, but this would be far more inconsistent with any legal thinking than accepting that it is possible to own your body. In order to avoid such future difficulties, the law needs to modernise; in all likelihood, the future of medicine will mean that a high-minded view of the
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All in all, the law of today regarding ownership of body is muddled, and it is nearly impossible to extract any reasoned principles underpinning the current law. Currently, we cannot say that we legally own our bodies, but the law indicates that we can own certain (removed) parts of our bodies. A property approach would provide a coherent framework for the law; indeed, it can be demonstrated that the current thinking behind the law sees rule preclusionary control of the body parts as being key. Moreover, the main arguments against allowing bodies to be property seem to place too much weight on the connotations of the label “property”, ignoring that strong value can be attached to property, as is the case with animals. Additionally, probable future medical developments suggest that it will be necessary to recognise ownership of the body, particularly as the distinction between what is classified as the body and what is not becomes ever finer.
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sanctity of the body is untenable. Outside of medicine, we are already seeing social change, and the body is becoming ever more commercialised. Those blessed with good DNA are able to insure their looks; a narrowminded bodily integrity approach would have to condemn such (now generally accepted) commercialisation of the body.2
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NORTHWING 2009/2010
specific, exceptional rules; for example, we are not allow to abuse animals, and certain antiques will be subject to various regulations. Similarly, this would address the concern as in Moore that giving a property right would inhibit medical research, for recognising such a right would not necessarily mean that all profit made would be able to be recovered by the owner; for example, a special scheme of remedies could be made; or the law could add exceptions to the right to property, as it has done in other areas; or the researchers should be encouraged to enter into contracts with the donors.2 Most commentators agree that the law in relation to body parts and body ownership is unclear and in need of reform; with bodies, we are dealing with things that people fundamentally need to exist; it would be better to develop the law regarding them through an established area of law than a new, unpredictable one (indeed, the notion of privacy rights is vague); this would give us legal certainty and would avoid the existence of two substantially overlapping but distinguished legal areas.