CYIL vol. 11 (2020)

CYIL 11 (2020) BODY PARTS AND BODY PRODUCTS: A CONTINUING LEGAL DEBATE truly know how it is even possible that a particular grouping of body cells, accompanied by symbiotic microorganisms, taken together and working together, is capable of thought, while many other similar arrangements of matter are apparently not. And we are simultaneously aware of both ‘being a body’, and ‘having a body as a tool for our mind’s interactions with the outside world’. Nevertheless, given that law needs to make practical rules for operation of human society, one of the assumptions on which legal rules are usually built is that a human being is not just an inhabitant of a body, but it (also) is the body, at least as long as this ‘point of integration’ lives. How does the law then treat (or rather, may treat) parts of that body, its products, and various dispositions with any of them? The discussion about this topic forms one of the ‘great debates’ of law and ethics 3 , and is far from closed. The aim of this article is to present some thoughts from this international debate, and find out where Czech law stands in it. 1. Outline of Basic Approaches Generally speaking, when lawmakers in democratic countries based on rule of law and respect for human rights consider that something is worth protecting, by state coercion if ultimately necessary, they attach some kind of rights to it. What is worth protecting may differ, but it usually comprises both things which are useful for people (people may exploit them for themselves and may have an interest in excluding others from similar exploitation or other interference), and some attributes that people have, including also their likeness, reputation, dignity, privacy, autonomy, bodily integrity etc. Even the latter aspects are similar to ordinary, tangible things in that they can be enjoyed, exploited or interfered with, and therefore may constitute legally protected assets to which particular rights may be attached. 4 The right to have a particular asset for oneself and to exclude anyone else from unauthorised interference is not necessarily limited to physical objects, but whether we can call such link, when it relates e.g. to privacy or bodily integrity, ‘ownership’, is obviously debatable. Such debate does not have to be limited to legal perspectives, but may also consider linguistic, philosophical and other aspect of the notions ‘property’, ‘ownership’ etc. In different languages or cultures they may not even mean the exact same thing. Law often uses one of two main ways how to attach rights to assets understood in the broadest sense, i.e. comprising both ‘things’ and parts and attributes of the ‘personal sphere’. Let us briefly outline them without preference for one or another. One approach is to speak about property rights ; those are typically built on the concept that someone (a natural person or legal entity) is owner of a particular asset, is usually entitled to possession of such asset, and may claim legal protection by courts and/or the state’s executive if someone interferes with it, e.g. by depriving the owner of the asset, utilising the asset for personal gain without the owner’s consent, or destroying it. 3 Cf. GOOLD, Imogen, HERRING, Jonathan. Great Debates in Medical Law and Ethics. 2 nd ed. (Palgrave Macmillan, London 2018), especially pp. 201-218. 4 Typically, the law recognizes that rights to dignity, privacy etc. belong to the person whose sphere of dignity, privacy etc. we are talking about, but at the same time it may allow such person to let others exploit them for themselves (e.g. by consenting that someone else may use photographs or videos depicting the person for commercial gain), and such arrangement may form a legally enforceable scheme.

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