Why should we respect the wishes which individuals may have about how their body is treated after death? Reflecting on how and why the law respects the bodies of the living, we argue that we must also respect the ‘dead’. We contest the relevance of the argument ‘the dead have no interests’, rather we think that the pertinent argument is ‘the living have interests in what happens to their dead bodies’. And, we advance arguments why we should also respect the wishes of the relatives of the deceased regarding what happens to the bodies of their loved ones. In our analysis, we use objections to organ and tissue donation for conscientious reasons (often presented as religious reasons) to show why the living can have interests in their dead bodies, and those of their dead relatives, and why these interests should be respected.
The sperm sample of a person undergoing chemotherapy treatment, stored by a hospital for his benefit for future use in case the treatment made him infertile, was property owned by him whose loss or damage entitled him to bring an action for negligence. Moreover, where the circumstances showed there was a bailment of the sperm to the hospital unit storing it, a cause of action for bailment could arise for its loss or damage sounding in damages for psychiatric injury and/or mental distress.
A sample of sperm from a person undergoing chemotherapy, which a hospital stored in case he became infertile after the treatment, was that person’s property and its loss or damage was capable of establishing a claim in negligence. Further, where the hospital’s storage was undertaken gratuitously in the sense that it was a bailee of the sperm, any breach of duty in its safe storage causing loss or damage entitled the owner to recover damages in bailment for psychiatric injury and/or mental distress.
Drawn by payments of up to $10,000, an increasing number of women are offering to sell their eggs at U.S. fertility clinics as a way to make money amid the financial crisis.
this is more than a study in the jurisprudence of regulation and of technology. The book also contains important and instructive essays in medical law (particularly), seeking, as it does, to explicate many of the background debates (for example on consent (pp 72–86) and information rights (pp 87–98), on the (legitimate and illegitimate) purposive interpretation of key texts such as the Human Fertilisation and Embryology Act 1990 and embryonic stem cell research (pp 47–56, 168–184), property in human tissue (pp 61–68) and genetic databases and forensic collections (pp 215–235), each of which is often treated in a more or less superficial way in some of the standard texts and commentaries, where judicial and legislative statements are offered without background context beyond some preferred ethical standpoint. And there are considerations of bioethics generally (pp 32–47, 100–118), patenting and human life forms (187–195), gambling (197–201), nanotechnology (pp 118–125).
This note analyses Yearworth v North Bristol NHS Trust, in which the Court of Appeal accepted the existence of property interests in parts or products of the human body and considered the applicability of chattel torts where interference with such interests occurs. The writer questions whether the Court's decision to extend the law of bailment in the case was necessary, or whether the law of conversion or negligence should be available as the more appropriate causes of action.
This paper explores the issue of donation of organs from deceased donors for transplantation into a specified recipient. It argues that proper account should be taken of the principles underlying the Human Tissue Act 2004, which grant the donor a form of proprietary control. Three hypothetical scenarios are then used to draw out the implications of these principles for existing regulatory policy and the common law response to excised human organs. The paper concludes that the law should be understood as recognising ownership in organs removed from living and deceased persons and as offering opposition to the prohibition of directed donation that can only be coherently removed by reform of the 2004 Act.
Yearworth v North Bristol NHS Trust is the first English decision to recognise the existence of property interests in preserved sperm samples. This essay provides a critical analysis of that decision, starting with a cursory discussion of the no-property rule. Thereafter, the essay examines the rationale, impact, and reach of the Yearworth decision. The conclusion suggests two visions of the decision in Yearworth.
The implications of recognizing property in our own excised body parts are vast and far reaching, involving ethical, legal and practical issues that cut across many aspects of modern social intercourse and legal regulation. Arguments both for and against such recognition are well rehearsed; enough has been written to fill a small library, or at least a large bookshelf. A significant portion of the work considers the role and impact of such recognition on human dignity. Indeed, given the special status accorded the human body, it is impossible to avoid human dignity and its interaction with the various choices presented by the adoption of a property model. However, reference to this general ethical value is of little assistance. Here, the ethical foundation of a property model is considered within the context of medical ethical four principles, namely autonomy, beneficence, non-maleficence and justice. If such a model promotes these principles, it can be ethically defended.
In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful. This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the sperm, and that compensation was thus due on the grounds that the men's property had been destroyed.
There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. Any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess which set of legal rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question.
Thirteen vials of donated sperm should be divided among two women whose same-sex relationship has fallen apart, says a British Columbia judge who concluded sperm should be treated the same as any other type of property in a spousal dispute. The case involves two women, identified in a court judgment only by their initials, whose eight-year relationship ended in 2006.