The Human Body and the Legal Concept of Property

The Concept of Property

Property as a term invites confusion and controversy. We tend to view property as an absolute concept, yet the concept of property is best described as relative, since it is defined and redefined constantly by community directed obligations. Further to this, property is argued not to be a thing, but rather a relationship that one has with a thing [Gray and Gray, ‘The idea of Property in Land’ in Bright and Dewar (eds), Land Law: Themes and Perspectives (OUP 1998), 11]. For example, one has certain rights in relation to property, and these are known as proprietary rights.

To determine what a proprietary right is, the Courts still apply a test proposed by Lord Wilberforce in 1965 in the case of National Provincial Bank v Ainsworth [1965] AC 1175. To satisfy the test, the proprietary right must be definable, able to be identified by third parties, have a degree of permanence or stability, and be capable of its nature in assumption by third parties.

Nevertheless, not all rights are proprietary. For example, a right which is not a binding right is regarded to be a personal right [Roger J. Smith, Property Law 2014, 8th Edition]. This is often considered to have less “propertiness”. An example of this distinction is a lease and a license. A lease would be a proprietary right, whereas a license is deemed a personal right [Bruton v London and Quadrant Housing Trust [1999] 3 All ER 481]. However, as this article will demonstrate, this distinction is not always so clear cut, particularly in relation to the human body.

Slavery

The first example of how both proprietary and personal rights can overlap, is slavery, which was once recognised by UK Courts to be a lawful form of ownership [Gelly v Cleve [1694] 1 Ld Raym 147]. It was not until the Slave Trade Act 1824 that English Courts made it an offence to participate in the slave trade. The Slavery Abolition Act 1833 also provided that slavery was abolished in the colonies. Therefore, up until the 1800s, humans were regarded as objects of personal property in which an individual could have a proprietary right in.

The current law, in the form of the Human Rights Act 1998, states that our fundamental rights and freedoms are more important than our rights in property. This change of legal attitude can be seen in the Australian High Court case of R v Tang [2009] 2 LRC 592, in which the operator of a brothel was convicted for slavery for treating five “contract workers” as if they were articles or objects of trade by buying and selling them. In this case, per curiam, Hayne J stated that slavery is ‘defined as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” [paragraph 145]. Therefore, even though some individuals still believe that one can regard another human as one’s property, the law, although Australian, has evolved similarly to the UK law to prohibit the human body being regarded as an object of property.

It can be argued that if the law was to allow the human body to be regarded as property, it could have a slippery slope effect in terms of enabling injustices like slavery to occur again. Although, if statutes were still in place this could be prevented.

Human Body Parts

A second example of an overlap in proprietary and personal rights can be seen in relation to human body parts. It is generally accepted that one cannot own human bodies, and therefore the different organs, tissues and parts within them, but what about one’s own body?

This is best illustrated by looking at organ donations. Organs must objectively and anonymously be allocated to people at the top of the waiting lists, in accordance with one’s listed preferences [Human Tissue Act 2004 Code of Practice 2]. This becomes controversial because one has no legal right to decide what happens to their organs after death. For instance, if one choses to donate organs, their relatives are under no obligation to follow one’s wishes when they are asked for permission [Human Tissue Act 2004 Code of Practice 1]. Also, an individual cannot make a choice as to who their organs go to [Yearworth v North Bristol NHS Trust [2010] QB1]. On the one hand, this is a rational rule because the waiting lists provide for a classification according to who needs organs the most. If one had a choice of who to donate to, then their organs might go to someone who could survive long enough to wait for another donor, unlike the person who is at the top of the list. On the other hand, it seems unfair that one cannot have a right to choose where their personal property goes to, but at the same time it is allowed to write a will specifying where one’s proprietary rights will go.

In certain circumstances, such as when a family member needs a transplant, it seems unjust not to have a choice to give the organ to them if it is compatible. This would therefore suggest that the human body, even one’s own, is not regarded as one’s property. It can be argued that perhaps human body parts should be allowed to be held as property, particularly due to their scarcity since there are very limited numbers of organ donors. Nevertheless, similarly to slavery, providing individuals with more discretion with regard to organ donations would be prone to having a slippery slope effect, as it could open the possibility of increasing the black market in which people sell body parts for money, consequently making the poor become even more vulnerable.

The Human Foetus

The third example of an overlap is seen through the following question: “if legally speaking, the foetus is not a person, is it property?” [Wells and Morgan, “Whose Foetus Is It?” [1991] JLS 18(4), 438]. This highly debatable topic is best discussed by illustrating a foetus in comparison to a frozen embryo. The only difference between the two, in my personal opinion, is that the frozen embryo is outside the body and the foetus is within.

Most cases surrounding embryos are those that concern divorces. A typical scenario concerns a husband and a wife who are worried about conceiving in the future. For that purpose they store a frozen embryo for later use. The marriage then breaks down and the wife is left infertile. A dispute arises over whether she should be allowed to keep the embryo or not. If the courts are to hold that a frozen embryo is just mere property, it would be held to be a moveable piece of property [York v Jones [1989] 717 F Supp. 421]. Such a conclusion would enable the parents to move, sell, chuck away or do anything they wished to do with the embryo, arguably a potential human being, just like they would with any other objects of personal property. This is clearly very immoral, but nonetheless some courts have held in their reasoning that the embryo is a bundle of human tissue and therefore has a legal status of property [Source: Draft Human Tissue and Embryos Bill 2006/2007].

Academics, such as Mary Ford [“A property model of pregnancy” [2005] Int. J.L.C. 1(3)], argue that personhood precludes property, and does not attach until birth. Ford says she does not understand why only embryos, and not foetuses, are regarded as objects of property.

Other academics, such as Gray [Kevin Gray ‘Property in Thin Air’, [1991] CLJ 50 (2): 252, 42], suggest that definitions of property should focus less on transferability and more on excludability, because property is about control over access. This suggests that the rights of a pregnant woman in respect of her foetus can be described potentially as property rights that cannot be transferred or alienated [Human Embryology and Human Fertilisation Act 1990]. Such a conclusion can be reached because if the mother has control over the foetus and what happens to it, then it can be inferred that it is her property.

Interestingly, in the case of abortion, it is only legal to carry the procedure out before 24 weeks of pregnancy, unless there are special circumstances that make the abortion necessary [Abortion Act 1967]. This would suggest that the foetus is not property, as the woman has no control over what happens to it after 24 weeks.

Society’s moral attitudes towards the foetus offer an explanation as to why it is not regarded as mere property. It can be argued that if property has moral limits, then the limits of property must be found between accepted and unaccepted social claims [Gray and Gray ‘The idea of Property in Land’ in Bright and Dewar (eds), Land Law: Themes and Perspectives (OUP 1998), 11]. However, the author Mary Ford [Mary Ford ‘The consent model of pregnancy McGill Law Journal’, Vol. 50, No. 3, 2005] believes that the foetus should be regarded as the mother’s personal property, because it is something she has produced and it is within her own body.

Conclusion

Personal and proprietary rights can overlap and are not always distinct. Arguably, in cases of organ donation and pregnancy, it might be moral to allow the human body and its parts to be regarded as property. For instance, if an individual has decided to donate their organs, the family should not be able to revoke that decision. If the human body were to be regarded as property, despite having a potential to cause a slippery slope, introducing proper regulation could negate this effect. Crucially, the law also needs to become consistent by either regarding both a frozen embryo and a foetus as property, or neither at all. However, there is still an ongoing debate over these controversial topics, and it appears that the law is still quite far from resolving it.