Abstract
The human body is quite the normative puzzle. It raises many ‘ought’ questions for the lawyer and ethicist that are not easily answered. Can existing law, which is old and slow to evolve, adequately adapt to changes in the medico-legal landscape, wrought by technology that is new and rapidly evolving? In such an ever-changing landscape, can the body and its parts and products sit neatly in an existing legal category or would this be putting new wine in old bottles; does it instead merit a category all of its own? How can property, an institution that developed to address very different problems than those posed by modern biotechnology, possibly be of use? These are but some of the questions addressed by Professor Quigley in this magisterial work of scholarship concerned with ownership and the body, a work which harnesses and synthesises much legal, ethical and philosophical debate in aid of its argument, but remains an eminently readable account of a fascinating (and hotly contested) area of scholarly inquiry.
‘Property’, as Penner notes, ‘is a bore…an annoying old idea that, given half the chance, will sit down beside you and maunder on about its past glory. Mention something topical though and property will be at a loss’. 1 Not so, says Quigley, (and ultimately Penner too I might add!), property gives us an established and pragmatic framework for dealing with things and a comprehensive set of doctrines for dealing with such core issues as the allocation of rights and the transfer of these rights. 2 The key question, which comes through forcefully in the book, is not whether we should recognise property rights in human biomaterials – medical professionals, hospitals, researchers and clinics already exercise such rights – it is whether such rights should be extended to their source. 3 Indeed, the disenfranchisement of the source of the biomaterials in directing the use and control of such biomaterials is a major regulatory lacuna that has opened in the last 30 years since Moore v. Regents of the University of California 4 , the first prominent decision to crystallise this exclusion in law. The question of how best to protect these interests is the locus where much of the judicial, academic and ethical debate takes place. 5
Any student of property law can tell you that it is an area sometimes beset by anachronism. One example of this is the common law rule that there is ‘no property’ in the human body, a rule that, although now entrenched, was probably based on a misreading of early cases involving grave robbing. 6 Another such anachronism is the exception to this rule whereby the body can become property if some work or skill is applied to it so that it acquires different attributes. 7 This exception to the exception allows for arbitrary acquisitions of property with little seeming connection to any useful justification. 8 When the latter rule is examined in detail, when we try to pin it down precisely, the best we can say is that some normative transformation needs to take place before we recognise human biomaterials as property. 9 The combined effect of these two rules, as Quigley rightly points out, is to exclude the source from acquiring rights in their own body, while awarding such rights to a third-party appropriator. This feels intuitively, and some might say viscerally, wrong. The body is host to many, uniquely personal and sensitive, interests of the person who inhabits it; yet the subject’s powers to exclude interference with their body, once any part of it has become separated from them, is severally limited by the haphazard development of the common law.
This need not be so. The ‘no property’ rule is not cast in stone and resting as it does on shaky foundations, ought to be cast aside. The apple that falls from the tree still belongs to the owner of the orchard. 10 It is not a res nullius – an unowned thing not yet the object of rights. No normative change has occurred; it is, and always has been, someone’s property. The body is no different, in Quigley’s view. In this context, ‘self-ownership’ means something more than rhetoric. A person’s interests in their complete living body is the subject of a myriad of rights, not least privacy rights, which impose a myriad of duties on everyone else not to interfere. If these rights and duties are to end once any part of a person becomes separated from the whole, it is this that must be justified and not the reverse. In essence, the author argues for an extension of the bodily-use freedom principle (whereby we are free to use our bodies as we please without unconsented-to interference from others) but with property as the vehicle to achieve this. 11 This is conceptually coherent but also intuitively appealing – who would argue that someone who had just lost a finger (or any other part of themselves) in an accident was not the one entitled to ownership of it? Furthermore, property is the perfect tool for protecting such interests, as contained within it is strong exclusionary protection with long-established remedial avenues for infringement. The true owner of property, contends Quigley, is the person who sets the ultimate agenda for it. 12 For human biomaterials, this could be no-one else (initially, at least) but their source.
This seems like a perfectly sensible approach, so one might inquire as to the reasons for the continued hostility to it. Property in the body, it is said, would cheapen that person. It would commodify them. It would make them into a mere ‘thing’ objectified, monetised and fungible in a cold and impersonal market. 13 Property’s values are individualistic and property thus instrumentalises its objects, whereas people are never a means to an end being an end in themselves. 14 This, however, is not what property is, or rather it is not all that property is. Gifts and gifting are property; trusts are property and property has been much defamed as synonymous with the purely selfish advancement of personal interest. Certainly, property can facilitate selfish endeavour, but property institutions also advance and facilitate altruism in many forms. 15 Many of the critiques of property rely on a simplified conception of its true nature; for example, equating all forms of property with full blooded ownership. Notwithstanding these views, limits on property are common and as the author notes the right to commercialise, or ‘income rights’, are not an inevitable feature of property if it is recognised in the body. Property is thus flexible and adaptable. Furthermore, the challenges for law in this area are not simply those posed by commercialisation. Disputes about the use and control of frozen sperm, for example, involve the most intimate and personal of human concerns. 16
Of course, to date the rights of the source have mainly been protected by consent based regulatory regimes. Consent, nonetheless, as the author notes in her incisive critique of human tissue regulation in the UK, is particularly ill-equipped to deal with an area such as this, where there is fast moving technological development. 17 Consent to the use of separated tissues is often ‘one-off’ and free-standing. At the time it is given, it would be impossible to anticipate the myriad of uses that human tissue might be put to in the future. 18 The same difficulty presents itself to any regulatory regime that would spurn property as a tool and treat the body as an object sui generis. Even when legal consent requirements are met it must be questioned how fully this gives effect to patient autonomy. Property, however, allows for continuing control and one of the solutions to the disenfranchisement of the source of biomaterials in directing the research process, as noted by Quigley, is the creation of trusts in biobanks. 19 Trusts, it is easily forgotten, are property but a type of property managed for the benefit of a group of donors, or indeed as with UK Biobank, the public at large. 20
Professor Quigley’s central thesis, of course, will not find favour with everyone and some notable commentators would have property banished from any future regulatory regime. 21 Nevertheless, this is an excellent and very necessary study of a complicated, intricate and often nuanced field of inquiry. The author’s comfort in a number of fields of academic endeavour – law, philosophy, ethics – greatly enhances the analyses of these problems by illuminating them from these different perspectives. A greater discussion of the possible (and indeed novel) harms that may arise from the use and misuse of human biomaterials once they have separated from their source would have been of interest, but this is a minor quibble. This is a fine work of scholarship that merits a wide and diverse readership, not just among lawyers and ethicists but also among law- and policymakers and clinicians as well. Property is not such a bore after all.
