CYIL vol. 11 (2020)

TOMÁŠ HOLČAPEK CYIL 11 (2020) the detached body part usually requires consent of the person in question. 33 Body products are to be treated similarly to (natural) body parts. 34 Public law adds more rules pertinent to particular categories of body parts, e.g. gametes, embryonic stem cells, transplanted organs and tissues, blood etc., together with administrative and criminal sanctions for undesirable behaviour, such as illicit trade in tissues, organs or embryos. 35 Nevertheless, even with respect to separated natural parts and products of a human body, two exceptions to the general rule can be outlined; one of them based on express stipulation of the law, the other more on actual practice. The law delineates a special category of such human body parts “that may be painlessly removed without anaesthesia and that are naturally restored” , giving a specific example of hair. 36 According to the statute, such material is to be seen as movable property and may be alienated for consideration (i.e. sold). 37 Probably in order not to disturb the general principle that even separated body parts are not ordinary property, the law maintains a fine distinction in stipulating that such objects are to be seen or considered as movable things, but not that they are such things. But the end result is much the same. The second exception concerns such biological material that has been processed, even when it may not fulfil the special criteria quoted above. A platelet concentrate may be made from raw blood with a view that it will be used for therapeutic purposes. A human skull may be prepared to be used for educational purposes. In these cases, the result of such processing is ordinarily handled as a thing, notwithstanding that the law is silent on this matter. Arguably, treating such objects as movable property is a reasonable approach in order to put these assets under adequate legal protection. By the time when the biological material has been processed, the link to the person in whose body it originated is usually rather weak, and protection of such objects as part of personality rights might not work very well. It is therefore justified to employ a similar fiction as presented above, i.e. applying legal rules which concern ordinary movable assets to the relevant part or product of a human body even while formally maintaining that it is not a thing in legal sense. However, allowing that certain material originating in human body may be considered movable property only resolves the issue of status, i.e. that property rights may attach to such assets. With respect to allocation of such rights, the law does not say much; from its wording which uses the concept of alienation for remuneration it seems that it implicitly assumes that the original owner is the person from whose body the biological material is separated. That approach is certainly possible, and perhaps reasonable, but it is worth noting that it is not an automatic consequence of recognising that such material may be ‘owned’ in the first place. Ownership could instead be vested e.g. in the person who collected such material. As mentioned above, Czech law primarily protects human body and its parts by means of personality rights. Even when, exceptionally, some material originating in a human body

33 Section 111(1), (2) of the Civil Code. 34 Section 111(3) of the Civil Code.

35 For more details cf. HOLČAPEK, Tomáš, ŠUSTEK, Petr. Komentář k § 111 [ Commentary on Section 111 ]. In: ŠVESTKA, Jiří, DVOŘÁK, Jan, FIALA Josef, et al. Občanský zákoník. Komentář. Svazek I [ Civil Code. Commentary. Volume I ] . 2 nd ed. (Wolters Kluwer, Praha 2020), p. 401. 36 Section 112 of the Civil Code. 37 This category also comprises products of a human body, as they leave the body painlessly and are continuously restored, thus fulfilling the two defining criteria.

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