CYIL vol. 11 (2020)

TOMÁŠ HOLČAPEK CYIL 11 (2020) Another approach is to use the notion of ‘ personality rights ’, which we can imagine as an intangible but legally protected sphere around each individual human being. We will utilise this notion as a shorthand for the whole bundle of such rights, which may include privacy, dignity, bodily integrity etc. They may differ from property rights because they do not usually operate with terms like ‘ownership’, but they share some common features, such as that they may be asserted ‘against the whole world’ ( erga omnes ). The label ‘personality rights’ should therefore for our purposes be understood in the sense suggested by the first paragraph of Article 3 of the Civil Code of Québec. 5 We can see that a particular legal system may select the former or the latter approach, or indeed a combination of the two, in order to regulate the enjoyment and protection of a particular asset worth protecting. It is a notoriety that while many legal systems prefer property rights for ordinary objects of the external world and personality rights for aspects closely connected with human body, the real picture is not so clear-cut. There are many specific cases which illustrate that the border between the two main concepts is not impenetrable. Consider that each day, our bodies get rid of a significant amount of biological tissue; to provide a trivial example, dead cells constantly fall off our skin. The very same cells which formed part of our human being become biological waste. They stop being ‘us’ and become objects in external reality. Yesterday, our personality rights covered them; should they continue to cover them today, or should they now fall under the regime of property rights if they could still be of some peculiar use to us? “Innumerous pieces of the physiological body are alienated from us without any sense of a loss of bodily integrity …The boundary between what is captured by bodily integrity, and what is not captured, is not determined by objective and physiological fact, but by whether the bodily component is a point of integration of a person’s subjectivity and objectivity.” 6 There is no reason why everything which originated in human body, or is somehow connected to it, would have to be forever considered part of the personality. But at the same time, if it stops to be part of it, how should it be legally regulated? What about a frozen embryo which arose from male and female gametes and is now stored at a medical facility: Is it still in the scope of personality rights of the persons who produced those gametes (e.g. as part of their integrity, although it is difficult to imagine one particular object to be simultaneously part of bodily integrity of two different people)? Or is it now an object owned by someone, whether the two persons who produced the gametes, the medical facility, or even someone else? When a burglar breaks into the facility and, whatever her motives, takes the frozen embryo away, does she unlawfully interfere with someone’s personality rights, property rights, both of them, or neither? Or consider the case of Price v. United Kingdom 7 , in which Ms. Price, who had congenital deficiency in all four limbs and had to use a wheelchair, was committed to prison on a court order, but was not allowed to bring a battery charger for her wheelchair with her. A battery charger could be considered as a typical object of property rights, clearly distinct from human body. But when it was so essential for her in order to be able to function as a human being dependent on a wheelchair, could access to it form part of her personality rights? And things 5 “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.” 6 Cf. HERRING, Jonathan, WALL, Jesse. The Nature and Significance of the Right to Bodily Integrity. Cambridge Law Journal . (2017, Vol. 76, No. 3), p. 586. 7 Adjudicated by the European Court of Human Rights, application no. 33394/96.

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