CYIL vol. 11 (2020)

CYIL 11 (2020) BODY PARTS AND BODY PRODUCTS: A CONTINUING LEGAL DEBATE in any event would be subject to the same constraints e.g. with respect of inalienability of certain fundamental human rights, such as right to life. 19 The picture changes with regard to a dead body. Personality of the deceased person no longer exists, but on the other hand, family members (or an otherwise defined group of those who had sufficiently close relationship with her) can still have a legitimate interest in defending her dignity, no matter whether the particular legal system positions them as a sort of proxies (in a way, acting on behalf of the deceased) or makes protection of the deceased person’s dignity part of the bundle of their own personality rights. But more importantly, a dead body certainly could, if the lawmaker so chooses, be an object of ownership; e.g. it does not seem preposterous to suggest that a museum may legally own a mummy that used to be a living person centuries or even millennia ago. The second category may comprise natural body parts , i.e. various organs or other tissues which are purely biological and originated in the particular human body. Typically, they contain a number of cells carrying the same DNA. Until they are separated from the body, they are seen as its ordinary components, seamlessly interconnected with its remainder. However, once they are detached, perhaps excised in a surgery or collected as a biological sample, they are objects of reality distinct from the body. They are not capable of their own will or thought, and would hardly be seen as “ a point of integration between a person’s subjectivity and the remainder of the objective world ”. 20 Nevertheless, that does not preordain that they would necessarily have to be regulated by a property-rights system, or solely by it. The law of a particular country may treat them as a part of the protected sphere of personality rights. They could also be subjected to both legal regimes at once – i.e. being affected both by personality rights of the person from whom they were separated and someone’s ownership right. 21 Things get trickier with the third category, i.e. artificial body parts . Even the term could be contentious – it is certainly debatable whether something implanted 22 into the body from the outside is truly its part. But let us use the concept as a suitable label which refers to all such objects which an ordinary person would most likely consider to have become part of her body, even if it is conceivable that they may become detached again in the future. 23 This broad grouping can be divided into various subcategories. We can distinguish implanted material of purely biological nature, e.g. organ or tissue transplants, blood transfusions etc. These body parts are not ‘artificial’ in the sense that they would be man- 19 In Czech law, this principle is expressed in Article 1 of the Charter of Fundamental Rights and Freedoms, which stipulates: “All people are free and equal in their dignity and rights. Their fundamental rights and freedoms are inherent, inalienable, non-prescriptible, and irrepealable.” 20 See footnote 2 above. 21 The latter “someone” could be the same person, but it is worth repeating once more that this is a question of allocation of rights and the law may allocate ownership to someone else, or allow the original owner to transfer the ownership to someone else. 22 This term suggests that the implanted object is joined to the rest of the body with at least some firmness for at least a substantial period of time. Therefore, an ordinary contact lens or removable denture would likely not be considered a body part, but it is certainly debatable. Cf. the wheelchair battery charger in Price v. United Kingdom above; a denture is arguably even closer to the particular person. 23 Consider the example of a pacemaker: a clearly artificial object which, once implanted to stimulate the heart, would probably be thought of as a part of the body. However, if it is later removed, or if after the patient’s death it becomes detached due to natural decomposition of the dead body, there is no reason why it could not be treated again as an ordinary thing.

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