CYIL vol. 11 (2020)

CYIL 11 (2020) BODY PARTS AND BODY PRODUCTS: A CONTINUING LEGAL DEBATE is considered as a movable thing, it does not mean that personality rights of the particular person could no longer be affected by improper handling of such material. When an object which is (or, is considered as) a thing in the legal sense is used to the detriment of the person with whom it is somehow linked (whether because it originated in her body or simply because it belonged to her), e.g. to ridicule her, expose her privacy etc., it may constitute infringement of the general personality right of such person. This means that recognising that certain parts or products of a human body may be considered movable property does not deprive the concerned person of protection of her legitimate interests in dignity, privacy and other aspects of her personality. Conclusion It is clear that human body, its parts, and its products constitute assets of not just subjective, but also objective value. Legal systems use many methods to protect assets which lawmakers consider worth protecting. The two main relevant approaches which have been outlined above are making the body and its parts either object of personality rights, or object of property rights. Apart from setting a particular status in their respect, the law should also stipulate in whom such rights should be vested. The matter is complicated by the fact that different categories of body parts and/or products may be distinguished, and rules pertaining to them need not be the same in all cases. This is especially apparent with respect to various artificial parts (which may be of purely technical, but also biological origin), and to body products which may be collected without great discomfort for the person in whom they originate. Arguably, the position of Czech law in the international debate on this topic is not particularly radical, but rather conservative. It mainly employs the technique of personality rights and puts significant emphasis on autonomy, self-determination, and need of informed consent of the concerned person. Nevertheless, this does not mean that no further development is possible. The Civil Code already has a special provision concerning animals, according to which they are not things in legal sense and legal rules applicable to things should only apply to them per analogiam in so far as it does not contravene their nature as living creatures. 38 A similar construction could be utilised with respect to separated body parts; they could be considered objects of property rights to the extent in which it would not harm human dignity, public health and public order. The same principle could regulate their handling, alienation etc. Such arrangement might supplement the existing protection of these assets. In suitable cases it could mean that the person in whose body certain biological material originates could perhaps benefit from any commercial profit obtained by third parties due to exploitation of such material better than in the current regime.

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38 Section 494 of the Civil Code.