CYIL vol. 11 (2020)

CYIL 11 (2020) BODY PARTS AND BODY PRODUCTS: A CONTINUING LEGAL DEBATE human body as part of the sphere protected by personality rights of the particular person. 29 Section 493 of the Civil Code expressly stipulates that neither human body nor its parts, even when they have been separated from the body, are a thing. This means that legal provisions normally applicable to things, e.g. rules of ownership, its transfer etc. are not applicable with respect to human body and body parts. And after death, human remains are protected from any dispositions in contravention of the deceased person’s dignity. 30 However, the real picture is more complicated. Both legal scholars and courts have recognised that in certain circumstances human body (of a deceased person) or its remains need to be viewed as object of property rights, mainly in order to be protected against improper handling or interference. In its 2005 decision, the Supreme Court ruled that a corpse was not a thing only as long as a body of a particular deceased person was to be seen in it. Once it is no longer so, even a corpse becomes a thing. 31 This principle is, to say the very least, debatable. What about a body of a known historical figure, e.g. a mummy of a known Egyptian pharaoh, or venerated remains of a specific medieval saint? Should the law treat the bones of emperor Charles IV, a well-known 14 th century ruler to whom even some people today can trace their lineage, differently from a contemporaneous anonymous skeleton? It may seem that passage of time and the related absence of any living close relatives may affect the legal status of such remains similarly, i.e. they may also become a thing in legal sense and thus subject to property rights. This does not deny that Charles’s earthly remains would be primarily thought of as an important item of national cultural heritage, but they can arguably also be thought of as an object of ownership, most likely of the State. As mentioned above, even a separated body part is declared by the statute not to be a thing. This again is not so simple as it might seem. The legal rule is directed primarily to natural body parts. With respect to artificial body parts, it was held in the past by the courts that they could not be considered to constitute things in the legal sense either, but only until their separation from the body. When they get detached from the body, including also through its natural decay, they again become ordinary things, 32 and consequently also object of property rights. In general, Czech law does not view separated natural body parts as things and bases their protection on personality rights. More specifically, it provides three basic rules applicable to them: A person fromwhom a body part was taken has a right to know how it was disposed of; it is prohibited to dispose of it in a manner undignified or endangering public health; and using 29 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), pp. 390-391. 30 Section 92 of the Civil Code. Cf. ŠOLC, Martin. Ötzi, Irský obr a další ve světle práva: právní povaha a standard důstojného zacházení se zemřelým lidským tělem [Ötzi , Irish Giant and Others in the Light of Law: the Legal Status and Standard of Dignified Dealing with the Deceased Human Body ]. Časopis zdravotnického práva a bioetiky , 2019, No. 2, pp. 45-67. 31 Judgment of the Supreme Court of the Czech Republic of 15 December 2005, File No. 22 Cdo 2773/2004. This ruling follows older legal doctrine expressed in ROUČEK, František, SEDLÁČEK, Jaromír, et al. Komentář k československému obecnému zákoníku občanskému a občanské právo platné na Slovensku a v Podkarpatské Rusi [ Commentary to Czechoslovak General Civil Code and Civil Law in Force in Slovakia and Carpathian Ruthenia ]. (V. Linhart, Praha 1935), p. 7. 32 As held by the Supreme Court of the Czech Republic in its judgment of 30 September 1982, File No. 11 Tz 42/82. While this decision was handed down in different circumstances (during the period of socialism and in the context of criminal law) and long before adoption of the current Civil Code, the principle on which it is based seems to be acceptable even today.

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