CYIL vol. 11 (2020)

TOMÁŠ HOLČAPEK CYIL 11 (2020) made, but rather in the sense that from the perspective of the person who receives them they constitute something which has been artificially joined with her body. The opposite subcategory would be that of implanted nonbiological material, or a combination of biological and non-biological material. 24 An even finer distinction may be made with respect to this subcategory. The implanted non-biological (or combined) material may be purely passive, such as an artificial joint after hip replacement or an artificial eye lens after a cataract surgery. But it can also contain an active element (as is the case of a pacemaker which actively influences the heart rate), and this active element may work on the basis of pre-set instructions (a programmable device), on the basis of instructions which were set beforehand but may be altered even when the device is in the patient’s body (a remotely controllable device), or purely on the basis of instructions provided online (a remotely controlled device). Especially in the latter cases the legal nature of such body part could be quite complicated, as it has to address the legal positions of both the person in whose body it is located and the person (e.g. a health care provider) who affects its operation by instructions transmitted by means of some kind of signal and/or software. The fourth category can be delineated to comprise body products , i.e. all which is naturally created in the body and leaves it through various physiological processes, e.g. excreta, sperm, milk, sweat, tears, saliva, perhaps also dead skin cells (unless thought of as belonging to the second category) etc. As is the case with natural body parts, both artificial body parts and natural body products can be legally regulated in various ways. The law may consider them to fall under the scope of personality rights of the person in question, under the scope of property rights, or a combination of the two. They may be awarded a particular status by the applicable law, but which one will it be is an issue of legal policy. A separate question, and again one of legal policy, is in whom will rights related to them be vested. 3. Where Does Czech Law Stand in the Debate? Let us now consider the position of Czech law in the ongoing international debate with respect to the various categories suggested above. Generally speaking, Czech Civil Code 25 emphasises the values of autonomy, dignity, privacy and integrity of a human being. Consequently, it recognises a broad notion of human personality, including all natural rights 26 , the examples of which are listed by the statute as life, dignity, health, living in favourable environment, reputation, honour, privacy and acts of personal nature 27 . Taken together with more specific provisions regulating e.g. interference with personal autonomy, informed consent 28 etc., it is clear that the law primarily treats

24 E.g. a medical device based on a technical substance but whose effect is provided or enhanced by components, coating etc. of biological origin. 25 Act No. 89/2012 Coll., the Civil Code, as amended.

26 Section 81(1) of the Civil Code. 27 Section 81(2) of the Civil Code.

28 For a discussion about selected liability aspects in this connection cf. HOLČAPEK, Tomáš. Convention on Biomedicine and Liability Resulting from Deficiency in Informed Consent. In ŠTURMA, Pavel et al. Czech Yearbook of International Public & Private Law. Vol. 9. Praha: Česká společnost pro mezinárodní právo, 2018, pp. 270-279.

404