CYIL vol. 11 (2020)

TOMÁŠ HOLČAPEK CYIL 11 (2020) In addition, whether the lawmaker decides to protect a particular asset by means of property rights or personality rights does not prevent the setting of certain legal limits with respect to exercise, transfer or licensing of such rights. So it would be hardly defensible to assert, hypothetically, that if e.g. separated body parts were considered objects of property rights (ownership), they could be always traded in any way, including under morally unacceptable conditions. The law could of course prohibit such trade, or put strict limits on it, just like it quite ordinarily puts limits on exercise of ownership 14 or its transfer 15 . Finally, it is also conceivable that personality and property rights could relate to the same ‘object’. In other words, the person in question could be both the legal owner of her body and have it considered a part of the legal sphere of her personality rights. 16 In actual practice, if both sets of rights existed simultaneously and were vested in the same person, they would most likely have to be exercised in harmony, otherwise they would not function very well vis-à-vis third parties. 17 In such case the model might not be too helpful. Nevertheless, it could be perhaps more useful in specific circumstances when the two sets of rights were allocated to different persons and the situation concerned not the whole body but a particular part or product of it. E.g. if the law for some reason recognises person A as legal owner of an object which originated in the body of person B (the object is a part or product of B’s body, whether unmodified or somehow processed), personality rights of B might limit how A could exercise their ownership so that it does not cause detriment to B’s dignity or other attributes of B’s personality. In this example the parallel existence of two sets of rights vested in different persons, where rights of B served as a limit on rights of A, could form a reasonable legal arrangement. 2. Classification To complicate matters further, body, body parts and various body products are not the same. In addition, developments in modern medicine create new distinctions and allow to differentiate new subcategories which combine matters biological and technical into specific phenomena. Let us attempt to offer a basic classification. The concept which naturally comes first is a human body as a whole . In this case, the legal approach to its protection will most likely fall under the heading of personality rights (whether the particular legal system utilises such term, or prefers another label). Property rights with respect to a living human body do not make much sense; in societies where chattel slavery is impermissible, property rights would necessarily have to be vested in the same person as personality rights. Exercise of the two sets of rights would be hardly distinguishable 18 , and 14 Consider e.g. the requirement of a building permit without which an owner of a land plot cannot build whatever she wants on her property. 15 E.g. certain items of cultural heritage or military weapons can only be sold to some buyers, under specific conditions, permissions, only to some countries etc. 16 Cf. the notion of “ Überlagerungsmodell ” (‘superposition model’) presented in ROTH, Carsten. Eigentum an Körperteilen. (Springer, Berlin Heidelberg 2009), pp. 10-14. 17 For a more thorough critique of the superposition model cf. ibid., pp. 14-20. 18 Thus arguably making the property-rights regime superfluous; cf. ŠUSTEK, Petr. Právní status lidského těla a jeho částí [ Legal Status of Human Body and Its Parts ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al. Zdravotnické právo [ Health Law ] . (Wolters Kluwer, Praha 2016), p. 390.

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