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Paul Jackson note: This essay was the major assessment for LA2021 Personal Property and Land Law at JCU Cairns in 2018. The assignment was worth 30% of course grade. Who owns your body parts if they are detached from your body? Not you! Not yet.
This essay assessment grade: High Distinction
Paul's LA2021 course grade: High Distinction
Any discussion on the law relating to human body parts, and the benefits and risks of attaching property rights to human body parts, must start at the beginning with the established rule in Hayne’s Case that there is no property in a corpse. However, while this 404 year old rule may be good law for a corpse there is an ever growing body of exceptions to the rule. While there may be “disquiet about treating the body as property” the “world has moved on”. The law should not leave human body parts floundering hither and thither “abandoning them to the general law of personal property”. What is needed now is legislation to empower the courts, and enable decisions “in accordance with general principles of law which are, hopefully, in accord with reason and common sense.”
This essay acknowledges Roman concepts of property, and summaries case law regarding the no property in a corpse rule which is subject to numerous exceptions like the work and skill exception. While the common law is being stitched together to create property in severed human body parts, an approach based on a detachment principle may help clarify when a new thing is created, and can be owned. Conferring property in human body parts exposes risks around consent and exploitation, and yet correctly addressed some of those risks may create benefits provided there is a legal right to assert ownership. Legislation has the ability to cut this twisted common law Gordian knot and definitively declare the law. Yet for property rights in human body parts to become a recognisable and enforceable property right there may need to be a “leap as opposed to the common law tradition of incremental development”. A platform for that legal leap already exists within a Queensland Statute, but before leaping forward, a leap back to the Romans.
II THE CONCEPT OF PROPERTY
Roman law concepts still inform property rights today. In Roman law a ‘thing’ regarded as res nullius was a thing that was not yet owned, or not able to be owned by a person because the thing was sacred, religious, or communally owned like the air or sea. That principle may be good for things which exist, but what of things newly created? Newly created things could be owned under the Roman idea of specificato. This meant the newly created thing was owned either by the person who made the new thing (like a painting on canvas), or by the owner of the materials (like grapes turned into wine). Roman law therefore regarded property as a thing, and a thing that can be either owned or not owned. This idea has developed over the centuries so we now understand that the concept of property is not simply the thing or the res itself. Property is better understood as the right, or some might say liberty, to “use or enjoy [the thing], the right to exclude others [from the thing], and the right to alienate [sell or transfer the thing]”. Modern property is a thing that can be owned, and which has rights attached. The property owner is the person or legal entity who can exercise the rights attached to the thing. The problem with property in human body parts is determining what exactly is the thing, what exactly are the rights, and who exactly has those rights.
III THE CONCEPT OF PROPERTY IN THE HUMAN BODY
A No property in a Corpse
The Hayne’s Case rule appears to have been erroneously established, and yet continually applied. The common law rule, based on the theft of sheets around corpses centuries ago, has less authority in an age where human body parts, organs and tissues (human body parts) are harvested, stored, and transplanted. Hayne’s Case is cited often in cases regarding human body parts. The body is not a thing. It has no right to be owned. (This no property rule may also be influenced by the abolition of slavery in the late 1700s, and a reluctance to find property in a body). The importance and impact of Haynes’ Case throughout the centuries, and across the western world cannot be underestimated. However, the application of Hayne’s Case is not without criticism: “[T]hat a corpse does not have title to the gravecloths does not mean that there is no title to the corpse”. The no property in a corpse idea materialises into fact in Dr Handysides Case. While there is some negative commentary of Dr Handyside’s Case the case was clearly acknowledged in Doodeward v Spence. Today it remains accepted that a corpse has no legal personality and the body does not vest in anyone. It is the executor of a deceased person’s estate, as the deceased’s personal representative, that has the possession, not ownership, of the body solely for the purpose of burial or cremation. The relevant question here is the application of the no property rule to human body parts.
B Body Parts as Exceptions to Rule
Case law surrounding property in human body parts has created a list of ‘no property in a corpse’ exceptions as long as one’s arm, whether that arm be attached to a body or not. The work and skill exception is “the principle legal mechanism through which property rights are created.” Indeed the global co-development of case law often relies on the 1904 Australian authority of Doodeward v Spence. It was Doodeward v Spence where Giffiths CJ observed: “a human body, or a portion of a human body, is capable by law of becoming the subject of property”. In 1998 the UK case R v Kelly considered the Doodeward v Spence work and skill exception where human body parts were property preserved for the purpose of examination and training by surgeons.  R v Kelly focused ultimately not on whether body parts were capable of being property, but rather who owned or had a legal right to own the parts. It was the theft and intention to permanently deprive the legal owner of the property that was ultimately indefensible for Mr Kelly and Mr Lindsay. This falls under the “theft exception” category.
Medical related exceptions to the no property rule are found in USA cases regarding the sale of blood. Spleen cells, applying the work and skill exception, were found to be property, but not the property of the body connected to the spleen. Colavito v New York Organ Donor Network Inc highlighted the next of kin exception where a donated kidney failed to transplant, and the plaintiff sought the other kidney which was already being transplanted into another body. Colvatio observed that, while next of kin can donate organs for a medical benefit to the recipient, the same donation did not necessarily provide the recipient with an ability to assert private or common law rights over the kidney. Staying with medical exceptions, West Australian courts found the power to order DNA testing from tissue samples because the tissue samples were classified as property. This all suggests the authorities are clear that when human body parts are separated from a living or dead body, they readily become property. The dead body in its entirety is not property, but the law has evolved from no property in a corpse to quasi property rights based on the Doodeward v Spence exception. It is questionable though whether the common law should continue to develop the work and skill exception to provide this ownership to others. Perhaps a ‘detachment principle’ approach that provides rights to the person from whom the body parts came would be better. How or why the detachment of human body parts occurs may affect who owns the property, and the risks and benefits of attaching property rights to human body parts.
C The Risks
Imagine a website called sparepartspeople.com.au which operates as an online trading platform for body parts. Ears, eyes, organs, bones, cell lines, spermatozoa: all available for purchase online. In 2018 advertising a human body part for sale to a buyer in Queensland is legally possible with the consent of the Minister or the Minister’s delegate. However, that window is cloudy and small. Additionally there could be significant risks to any individual permitted to actively sell body parts for short term economic gain, only to the long term detriment of their health and income earning capacity. Risks associated with obtaining free and willing consent from individuals would need to be addressed to combat the risk of human trafficking. Some of these consent risk questions mirror discussion in the 2017 Victorian Euthanasia debate, which resulted in multiple risks being addressed via strict assessment, permit, eligibility and protection mechanisms throughout the ground breaking Voluntary Assisted Dying Act 2017 (Vic). Legislation could have a central role in regulating and managing risks associated with economic exploitation, consent, human trafficking, eligibility and fair compensation. Human body parts as property legislation enacted to protect individuals, perhaps drawing on aspects of the Victorian legislation, could fulfil a dual role of addressing risks, and activating benefits.
D The Benefits
The headline benefit of property in human body parts must be to benefit the individual from whom the body part has been separated (source body). The ability to assert property rights over detached body parts would open up the bundle of rights already attached to other property. The right to enjoy, to exclude, and to alienate the body part, with legislative rights attached as a thing that can be owned. Property in detached human body parts would enable the source body to provide and withdraw consent; licence or share in the profits of medical or biological creations derived from the parts; devise contractual rights, and seek remedies for breaches of those rights. The true benefit of property in human body parts being conferred to the source body is to devolve the property rights away from third parties, who have gained property in bodies through a myriad of common law exceptions, and give those property rights to the individual.
IV SHOULD THERE BE PROPERTY IN HUMAN BODY PARTS
Common law exceptions have delivered ownership in body parts away from the source body. This seems an unconscionable and unequitable position to maintain at law: that one’s body parts can be owned by everyone but oneself. “The land itself is one thing, and the estate in the land is another”  The ‘thing’ owned in Walsingham’s Case was the estate in the land. Property is not the thing itself, but the thing together with the bundle of rights associated with ownership, possession, and control of a thing (supra). The right to alienate, and the right to exclude all others. The problem with defining or recognising an individual’s property rights in their own human body parts are the existing rules. Hayne’s case, Doodeward v Spence, and other exceptions are used to deprive the source body from the bundle of rights related to the detached parts of their own bodies, and give those rights to others. If a person’s body is inviolate, and free or safe from intrusion and disturbance by any other, then who but that person should have the ability to direct and control the things detached from their person. If a truck motor can be detached from a truck body and treated as property, then a body part can be detached from a human body and treated as property. It may simply be that fear is preventing the common law from taking this “one giant leap for mankind,” but the clash between the no property in a corpse rule, and property in human body parts demands a super exception to the old rules. The super exception is the same leap that fixed the problem of taking 40 days to find 40 knights many years ago, and it has one name: legislation.
Legislation can create this final leap from the rule erroneously established in Hayne’s Case, and legislation can provide the courts clear guidance upon which to make decisions. The leap into the future of property in human body parts is possible. Indeed, Queensland legislation already exists providing a small window of quasi property rights in detached body parts. However, it should be to the recent bold Victorian legislation that Queensland could look to provide mechanisms to manage the risks, and deliver the benefits of property in human body parts. Detached body parts are a newly created thing (specificato) with an existence directly connected to the source body. The thing to be owned is not simply the res or body part, but the property rights in the body parts. It should be the source body, not third parties, where ultimately resides the property rights in human body parts. Legislation, though perhaps a Roman double edged sword with risks on one side of the blade and benefits on the other, is the tool to use. Legislation is the key which will enliven property rights in human body parts.
 Haynes Case (1614) 12 Co Rep 113.
 The Sacred and Profane: The Role of Property Concepts in Disputes about Post-mortem Examination. Prue Vines, Sydney Law Review 29, 235.
Roche v Douglas  WASC 146 .
 Moore v Regents of the University of California (1990) 51 Cal 3d 120, 137; James Edelman, ‘Property Rights to Our Bodies and Their Products’ (2015) 39(2) University of Western Australia Law Review 51, 58.
 Roche v Douglas  WASC 146 .
 Richard Taylor, ‘Human Property: Threat or Saviour?’ (2002) 44 Murdoch University Electronic Journal of Law  < http://www5.austlii.edu.au/au/journals/MurUEJL/2002/44.html>
 Des Butler ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 339, 357.
 James Edelman, ‘Property Rights to Our Bodies and Their Products’ (2015) 39(2) University of Western Australia Law Review 47, 49-51.
 Ibid 49-50.
 Above n 8; Rendell v Associated Finance Pty Ltd (1957) VR 604, 606-607.
 Ibid 49. Specificatio and a Justinian middle way for ownership of newly created things.
 Ibid 57.
 Milirrupm v Nabalco Pty Ltd (1971 17 FLR 141, 272 (Blackburn J) with inserted emphasis of [thing].
 James Edelman, ‘Property Rights to Our Bodies and Their Products’ (2015) 39(2) University of Western Australia Law Review Volume 65.
 Roche v Douglas  WASC 146; Doodeward v Spence (1908) 6 CLR 406.
 Above n 6 -.
 Above n 8, 63.
 Exelby v Handyside (1749) 2 East PC 652.
 Above n 6 .
 (1908) 6 CLR 406, 419-420 (Higgins J).
 Prue Vines, “The Role of Property Concepts in Disputes about Postmortem Examinations’  29 Sydney Law Review 235, 243.
 Doodeward v Spence (1908) 6 CLR 406,411 (Griffiths J).
 Doodeward v Spence (1908) 6 CLR 406,419; Smith v Tamworth City Council (1997) 41 NSWLR 680, 691.
 Cremations Act 2003 (Qld) ss 6, 8(5), 11(5)
 Rohan Hardcastle, Law and the Human Body: Property Rights, Ownership and Control (Hart Publishing, 2007) 203.
 Doodeward and Spence 1908 6 CLR 406, 414.
 R v Kelly and Lindsay  EWCA Crim 1578.
 Ibid. Where the theft involved many pieces including “35 to 40 such parts, including three human heads, part of a brain, six arms or parts of an arm, ten legs or feet, and part of three human torsos”.
 Above n 6 -; See also R v Cundick (1822) Dow & Ry NP 13.
 Green v Commissioner of Internal Revenue 74 T.C. 1229 (1980) blood can be sold creating taxable income.
 Moore v Regents of the University of California (1990) 793 P 2d 479 decided in favour of Moore on fiduciary relationship, not who owned property in the spleen cells which was owned by Regents.
 (2006) 8 N.Y.3d 43.
 Supreme Court Rules 1971 (WA), O 52, r 3(1); Roche v Douglas  22 WAR 331; See also that Haynes’ Case and Doodward v Spence were cited in this judgement.
 Rohan Hardcastle, Law and the Human Body: Property Rights, Ownership and Control (Hart Publishing, 2007) 145-146; 203.
 Above n 8, 67.
 Transplantation and Anatomy Act 1979 (Qld) ss 40-41. The issuing of a permit to buy organs is enabling a process of alienation. Case authority in this essay shows the detached thing would be regarded, if stolen from storage or needing to be tested by a court or having received the application of work and skill, as property.
 Transplantation and Anatomy Act 1979 (Qld) s 51 which provides mechanism in Hospital and Health Boards Act 2011, sch 2.
 Department of Home Affairs, Australian Government, Human trafficking guidelines and fact sheets <https://www.homeaffairs.gov.au/about/crime/human-trafficking/guidelines-and-fact-sheets>
 Walsinghams’s Case (1573) 2 Plowd 547 at 555; 75 ER 805, 816.
 Milirrupm v Nabalco Pty Ltd (1971 17 FLR 141, 272 (Blackburn J).
 Rendell v Associated Finance Pty Ltd (1957) VR 604, 610; Batt, J M ‘Rendell v Associated Finance Pty Ltd’ (1958) 1(4) Melbourne University Law Review 547, 550.
 Neil Armstrong, ‘1969 Moon landing’ 109:24:23 landing <https://www.hq.nasa.gov/alsj/a11/a11.step.html>
 Statute of Quia Emptores (1290).
 Transplantation and Anatomy Act 1979 (Qld) ss 40-41; Transplantation and Anatomy Act 1979 s 51 provides mechanism in Hospital and Health Boards Act 2011, sch 2.
 Voluntary Assisted Dying Act 2017 (Vic).