CYIL vol. 11 (2020)

CYIL 11 (2020) BODY PARTS AND BODY PRODUCTS: A CONTINUING LEGAL DEBATE can get even more confusing with respect to various medical devices implanted into a human body or otherwise permanently (or semi-permanently) attached to it. We will discuss the classification in more detail below. Before we come to that, a few more remarks should be made. Discussion about any rights (whether in form of property or personality rights), including also rights to any body parts or products, needs to distinguish between ‘status’ and ‘allocation’. The former refers to whether something can be the subject of e.g. a property right or not; the latter then deals with the question to whom such a right should be allocated by the law, obviously with greater or lesser possibility to alienate it or license others to use it. 8 The right does not necessarily have to be allocated to the person in whose body the relevant tissue originated; it could be ascribed by the law to the health care provider or to the state (e.g. to facilitate medical research). The point is that allocation of rights is a question of legal policy and there is no single correct ‘solution’ which would automatically follow from making something a subject of such right in the first place. An important point in discussion about potential property and/or personality rights relates to ethical, religious and philosophical worries about commercialisation or morally unacceptable exploitation of rights related to body parts and products. This is expressed in various documents of differing legal nature; an example is Article 21 of the 1997 Convention on Human Rights and Biomedicine 9 , according to which the human body and its parts shall not, as such, give rise to financial gain. This means that organs and tissues should not be bought or sold. 10 However, it should not be assumed that commercialisation is a necessary consequence of recognition of property rights (as opposed to personality rights) in respect of such materials. It is certainly possible that if the law recognises that a particular part or product of a human body can constitute someone’s property, such property rights may be abused or unethically exploited by various actors. But such legitimate worries exist independently of any particular legal regime utilised for such assets. 11 Even if the law considers body parts and products to fall under the scope of personality rights and not being owned by anybody 12 , this does not in any way prevent potential abuse, unethical behaviour on the part of health care providers, medical researchers, biobanks and others 13 , and it does not per se suppress illicit trade in human organs or other tissues. 8 DOUGLAS, Simon, GOOLD, Imogen. Property in Human Biomaterials: A New Methodology. Cambridge Law Journal . (2016, Vol. 75, No. 3), p. 484. 9 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, signed by a number of Council of Europe member states in Oviedo on 4 April 1997. 10 Nevertheless, it does not preclude reasonable remuneration for various technical acts (e.g. testing, storage or transport) performed on such tissues; neither does it prevent a person from whom an organ or tissue has been taken from receiving equitable compensation for expenses or loss of income. 11 DOUGLAS, Simon, GOOLD, Imogen. Property in Human Biomaterials: A New Methodology. Cambridge Law Journal . (2016, Vol. 75, No. 3), p. 489. 12 And consequently, dispositions with them to require someone’s informed consent and unauthorised interference with them to be treated as breach of personality rights. 13 Consider an example of a doctor who removed certain tissue from a patient’s body during surgery carried out with proper informed consent required under the concept of personality rights of the patient. For some reason the tissue in question is useful for commercial medical research which brings profit to the hospital that employs the physician. The patient may not be entitled to any share in the profit, which seems as a questionable outcome. The situation might, or might not, be the same under the concept of property rights. The general point is, however, that the concept of personality rights does not seem intrinsically better in preventing outcomes which may be considered suboptimal.

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