BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

a significant influence on other continents. 5 In the Czech Republic, the Convention is considered part of the legal order with application priority over national laws. 6 Article 21 of the Convention simply states: “The human body and its parts shall not, as such, give rise to financial gain .” The importance of the prohibition of financial gain is only highlighted by the fact that Article 21 is one of eight provisions of the Convention that cannot be restricted under conditions set by Article 26. The respect for the human body is further expressed by the provision of Article 22, 7 regulating the disposal of removed parts of the human body, which is, however, of a rather secondary importance for the purposes of this paper. According to the Explanatory Report to the Convention, Article 21 applies the principle of human dignity, which is the Convention’s core principle. The Explanatory Report explicitly states that blood is considered a human body part; it is generally agreed that also oocytes fall within the scope of the term (while the regime of sperm is more controversial). On the other hand, hair and nails, which are discarded tissues, can be freely bought and sold, since the sale of them is not considered contradictory to human dignity. 8 Organs and tissue proper should not be bought, sold, or give rise to a financial gain for the person from whom they have been removed or for a third party (e.g. hospital). However, technical acts such as sampling, testing, pasteurisation, fractionation, purification, storage, culture, or transport may give rise to a reasonable remuneration, even though they are performed on the basis of human tissues. It is also crucial that while the remuneration for human body parts is prohibited, a person from whom an organ or tissue has been taken is not prohibited from receiving equitable compensation for expenses incurred or loss of income. The question of patents based on human tissue use is excluded from the scope of Article 21. 9 2. Czech civil law The newCzech Civil Code of 2012 (Act No. 89/2012 Coll., Civil Code) (CC), in force since 1 January 2014, defines a thing in a legal sense in Section 489 as “everything that is different from a person and serves the needs of people”. 10 Human body parts are explicitly excluded from the category of things by Section 493: “Human body and its parts, even if separated from the body, are not a thing.” However, Section 112 sets an exemption for 5 See ANDORNO, R.: The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law, Journal of International Biotechnology Law, New York: De Gruyter Recht, 2005, Vol. 2, No. 4, pp. 133-134. 6 Based on Article 10 of the Constitution of the Czech Republic. 7 Article 22: When in the course of an intervention any part of a human body is removed, it may be stored and used for a purpose other than that for which it was removed, only if this is done in conformity with appropriate information and consent procedures. 8 Explanatory Report to the Convention, Sections 131-133. 9 Ibid., Sections 132 and 134. 10 The legislator’s general inspiration by the Austrian Civil Code (ABGB) is evident in this provision, since Section 285 of ABGB contains basically the same definition ( “[e]verything that is distinguished from the person, and serves the use of men, is called a thing in the sense of the law” ).

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