Do
we have property in our bodies? Internationally? In the Kenyan legal context?
A
question that pegs new age property scholars. Some people in the diaspora can
sell their skin for advertisement space[1]in
the sense that one agrees to get a tattoo of a company logo for a price.
Through such a deal the human’s body becomes a commercial space and but also
assumes an aspect of alienability, a 3rd party now enjoys a
proprietal interest in the sellers body.[2] Is
it now right to say that the seller owned that which he sold? How can we
characterize the legal relationship that the seller now has with his body?
2nd
example: Disembodied human skin is used by biotech companies to create an array
of products, ranging from life-saving skin grafts to anti-aging creams[3]. Biotech
companies purchase the tissue and convert it into useful and profitable
products[4]. A
chain of skin ownership stretches from the procurement agency to the biotech company
to the patient who receives a skin graft. But what of the person whose body
originally produced the skin tissue? Did the originator of the skin ever “own”
it in the same sense that the biotech company owned it?
Advancements
in biotechnology have complicated this question of human body ownership by producing
an extraordinary array of uses for the human body[5].
However the notion of referring to the human body as property because it is
argues that the human body is special[6]
and referring to it as property debases it[7].
It also not clear how a human body can be owned by even the human himself
because it is perceived that the human is one with the body such that one
cannot both be oneself and own oneself.[8] Render
Argues that all the objections to the human body as property debate is based on
misunderstandings of property, of owning oneself and of the consequences of
adopting a property framework vis a vis the human body.
Property has been argued to be a bundle of
sticks relationship with other people in regard to things or a collection of
Hofheldian correlative (rights, privileges, powers, and immunities) that
regulate the relations of people with respect to valued resources.[9]
“Core”
property rights are in fact in rem rights, and that in rem rights are
qualitatively distinct from in personam
rights, Merrill and Smith by coming up with this explanation brings our
attention to the tangibility, the “thingness” of property rights, thereby
articulating a qualitative line between property rights and other species of
entitlements[10],
tangible property rights hold a distinct form of entitlement from the rest. The
“thingness” of property rights is significant in that we know things about our
legal duties with respect to a thing that is owned even if we do not know who
the owner is. We know, for example, that we cannot take it, or use it, or
destroy it without permission. We know, too, that we have these duties with
respect to a thing even though we are not party to a contract[11],
Smith argued that because property rights create duties that attach to
“everyone else,” they provide a basis of security. This feature of property imposes
an informational burden on large numbers of people. As a consequence, property
is required to come in standardized packages that the layperson can understand
at low cost. This is provided for by the principle of numerus clausus( number is closed), it limits
the kinds of interests that are possible in property to a set number and thereby
prevents the customization of property interests.[12] It
is appropriate when we are concerned about ownership interests that append to
“things” because of the inherent “thingness”—the in rem character—of the
tangible subjects of property. When I convey an interest in my real or personal
property, the scope of the interest I can convey is inherently limited by the
entity itself (e.g., I cannot convey to you more house than I have). So
property interests in the tangible objects of property are more than “little empty
boxes filled with a miscellany of use rights” indistinguishable from other
types of entitlements.[13]
The
law is silent on the question of the legal status of a living human body. A
person, of course, enjoys a legal identity. A person’s blood, organs, tissue, sperm,
and ovum can enjoy legal identities.[14]A
deceased body enjoys a legal identity. But a living body is omitted from this
taxonomy. For something to fall within the concept of property the criterion is
two; the entity must be valued (i.e., the entity is capable of being put to a
valuable use); and it must be “ownable” (i.e., ownership rights backed by force
of law) but the entity of the living human body is impervious to the criteria.
In
Moore v. Regents of the University of
California[15],
the court was called upon to determine whether John Moore, who suffered from
hairy-cell leukemia, “owned” or had other property interests in his spleen
after it had been removed from his body during the course of a medical
treatment. In the course of his treatment, Moore’s doctors discovered that
Moore’s white blood cells were clinically unique. Without Moore’s knowledge or
consent, his doctors retained his spleen for medical research .The research
culminated in the patenting of a highly lucrative cell line, and Moore, upon
discovering that his cell structure formed the basis of the cell line, sued the
doctors for conversion on the theory that he retained a property interest in
his spleen after its removal. The court found that he lacked the requisite
ownership interest, the extension of conversion law into this area will hinder
research by restricting access to the necessary raw materials, Exchange of
scientific material will be compromised and lastly the extension of the concept
of property to bodily materials will create uncertainty of title as it would be
prohibitively expensive to investigate the origin of bodily materials which
enhances biological research, a public good. The court however said in passing
that if Moore was informed of it then he would have secured his property
interest. In saying this the court set the bar for proprietary interest as
informed consent although they referred to this not as proprietary but as
bodily integrity interest on the basis of informed consent then the court
adopted an in rem quality of the interest in the Spleen. So rather than denying
the possibility that we own our bodies, the holding in Moore actually relies upon
the assumption that we own our bodies. If Moore had no interest in his spleen
prior to the splenectomy, the decision would be rendered incoherent.
Property
rights are in rem interests, and that in rem interests are unique in that they
accommodate the attributes of “thingness” attendant to the tangible world.[16]
The
primary means by which in rem interests accommodate these attributes of “thingness”
is through the principle of numerous clausus,
which limits the forms that interests in objects can assume. The living human
body (and its constituent parts and products) fits squarely within this in rem
rights paradigm. As a resource, the human body is finite and unique not only in
that there are an exhaustible number of living human bodies, but also in that
living human bodies are not fungible. My body is not an adequate substitute or
replacement for another’s body. Each living body serves a unique and
nontransferable function, and a person who is separated from her body cannot be
made whole with either money damages or a replacement body. Of all the other
core property interests, only real property shares this attribute of uniqueness
so completely, and real property is the model upon which our in rem
understanding of rights is built[17].
It
should be noted that the Court in Moore carefully
avoided describing human tissue as “property,” but in doing so the court
utilized the tools already in place within our legal scheme for dealing with
tangible, finite resources to protect against the typical pitfalls that hinder the
productive use of tangible resources. The legal status of the living human body
has been suspended in a kind of limbo as courts following Moore persist in assuming without acknowledging that we have a
limited, standardized set of rights in our bodies, yet decline to identify
those interests as “property” thus we are left with an incoherent doctrine that
deems our bodily material to be “property” only once it is separated from us.
The unwillingness to describe the body as property is predicated on conceptual
misunderstandings.
Much
attention on human body as property is centered on sensationalized stories such
as black markets for organs that are forcefully transplanted from unknowing
donors. However our social practices and our linguistic description of those
practices suggest that our conventional concept of “ownership” extends to the
human body[18].
What
is the content of the property interest we hold in our bodies? To have an in rem
property right is to have the exclusive right to use a tangible entity
including, minimally, the right to exclude others. The content of our control
is limited by public policy, in the context of a living human body; the
exclusive right to use is inherent in the structure of the entity itself. A
living human body is the most immovable of all resources, the person who is
born into a body as that body’s “original owner,” we can readily say that no
one else can use a human body in a manner that is in any way commensurate to
the manner that the original owner uses it. This is not to say that an original
owner cannot be separated from her body[19]but
such a separation necessarily results in death, and death necessarily transforms
the living human body into another kind of entity, a body is only “ownable” once
and can only be owned by the original owner. Our relationship to our whole and
living body assumes the form of an inalienable property right. “Inalienable”
here means that it cannot be separated from the owner of the right and
transferred to another. The content of one’s inalienable property right in her
body is, minimally, the exclusive right to use her body (e.g., to live), a
right that also necessarily encompasses the right to exclude all others (e.g.,
to exercise sexual and medical autonomy, to be free from injury to the body).
These rights are necessarily essential to the concept of “ownership” in the
context of the human body. Further, our existing legal
structure (although silent on the legal status of the living human body) backs
an exclusive right to use the body with the force of law. For example, rape
law.
Solving
the conceptual misunderstandings: Much of the problem lies in describing the
human body as a thing or object and the notion of owning other people as it
reminds us of horrors such as slavery. Most of these sets of worries about
identifying a living human body as property is rooted in a conflation of the concepts
of “body” and “person.” These two concepts, while certainly related, are
sometimes treated as coterminous, and if they are coterminous (i.e., if a
person is no more or less than (or nothing other than) her body and vice
versa), it may be incoherent to say that a person owns her body.
What
is a person? Is an entity to whom
rights and duties attach and laws apply[20].In
the context of the human body ownership
an “original owner” of a body is the person who is born with that body.[21]So
it is it is coherent to say that a person “owns” her body based on the fact
that an owner in this context is a legal concept, and when we speak of a person
who “owns”, we are referring to the legal concept of “person” (i.e., the entity
upon which rights are conferred in a particular legal context) and not the conventional
concept of “person,” which is illustrated by the fact that owners of property
can be non-natural persons.
Persons and Bodies:
Is a person and the body the same thing? This is known as the mind body
problem, which considers whether one of two mutually exclusive accounts of the
connection between a person and her body is correct[22].
1st is Dualism: it holds that a person is constituted of both physical properties (one’s body) and non-physical properties (usually, one’s mind, but sometimes one’s soul, intellect, consciousness, or identity). However this fails as it is incoherent for one to be both the subject and object of ownership[23].
1st is Dualism: it holds that a person is constituted of both physical properties (one’s body) and non-physical properties (usually, one’s mind, but sometimes one’s soul, intellect, consciousness, or identity). However this fails as it is incoherent for one to be both the subject and object of ownership[23].
2nd
is Reductionism: it holds that all phenomena related to the person/body connection
depend upon (or can be reduced to) physical phenomena.[24]According
to the radical reductionist view not only are all mental phenomena reducible to
physical phenomena, but a person (or self) is composed of physical and
psychological continuity and nothing more. However, if we embrace
the radical reductionist view then it is not clear that a coherent normative
distinction between “mere objects” and “persons” exists. If it is indeed the
case that we are nothing apart from the sum of the physical processes of our
bodies, then the “thingness” connotation is sensible. It may be the case that
our physical processes give rise to special attributes (e.g., sentience and
sapience) and that these attributes are particularly worthy of dignity and
moral respect, but it is not clear how describing an entity that has these
attributes as “property” debases that entity, when the attributes themselves
are reducible to a set of things. Seeking inspiration from these two theories
it is concluded that a ‘person’ and ‘body’ are distinct concepts. Hence it is
coherent to say that a person owns his/her body.
Am
I supporting slavery? The thought of regarding bodies as property evokes anger
even within I because the reduction of person to things indirectly hints at
slavery. What does it mean to own oneself? When used in a
property law context, as here, the phrase usually takes on quite a literal
meaning: the question asks do we own the corporeal entity—the physical
artifact—that is our living human body[25]? Property
law is concerned with the right to exert dominion over and retain an interest
in the biological capacities and physical artifact of our corporeal bodies[26]. So
the term “self-ownership,” means the
right of exclusive use of one’s body where that right is backed by the force of
law, it is only vested in the person born into that body, it is inalienable
therefore in the advent of slavery such ownership was not possible of a slave by the slave driver. This is the
distinction between owning a person and a body. The human body law should pay
specific attention to the right of exclusion of others as this is arguably the
most powerful incident of ownership in the body.
Am
I calling for a commodification of the human body and the Domino effect of
this? Commodification when used in this context, means to transform an entity that
has use value (people can make valuable use of the entity) into an entity that
has both use and exchange value.[27]
Scholars
such as Margaret Radin, Martha Ertman, Joan Williams are
concerned that;
·
By creating unfettered legal markets in
these “contested commodities” we would aggravate or perhaps worse, justify existing
exploitations of people[28]
·
Commercial markets would exacerbate (or,
again, perhaps justify) radical inequities in the distribution of life-saving
body parts along racial, ethnic, geographic, and socioeconomic lines.[29]
·
Making the human body available to
legally sanctioned commercial markets lowers the dignity status of the human
body and, consequently, devalues the concept of personhood
Alienation in this context means to
place in a commercial market, and in declining to identify a property interest
in the human body the Moore court is perceived by some scholars to have
succeeded in protecting the human body from at least this kind of commodification.
These concerns are misplaced;
·
Describing a thing as property does not
increase that entities capacity to be traded in the market ipso facto in the context of the ownership right in
a living human body, the explicit designation of property actually makes commodification
of the body less possible because it reveals that the right of exclusive use is
inalienable.
·
A distinction must be drawn between
alienation of the human body and alienation of the capacities of the human body
It
has been stated that the body as property has some aspect of inalienability,
this is to not say that it cannot be a commodity because body uses such as
prostitution, surrogacy, pornography or advertising are freely done, however
this are just aspects of/capacity of the human body that becomes a tradable
entity. But, the core of body ownership the right to use and exclude cannot
become a commodity.
The
fact that body ownership is inalienable means that regarding it as property
does not make it vulnerable to commodification but rather serves as an impediment
to commodification[30]
because all this body uses will not be done freely in a lacuna, they will be
governed by the law which will enhance fair and lawful practices.
Still
many are concerned that denoting the human body as a property right connotes
market alienability; this is misplaced because the right to transfer, where it
exists, is an incident of property, not necessarily criterion of property[31].
It is perceived that designation of “property” is bound to affect the alienability
of the capacities of the human body; developments in biotechnology have made it
possible to transfer not only body parts but also capacities of the human body.
This development have created somewhat of a second order value to our bodies,
the
first-order value of a human body is the unique value it provides to the person
who is born with it. For example, my body uniquely sustains my particular life.[32] No
one else shares the same relationship of particularity and necessity that I do
with my own body and its constituent parts[33].
Bio technology has created a second order value to body’s as now one’s body is valuable to another for example a woman’s womb, ovum, man’s sperm. Although the capacities of the human body have become increasingly alienable, it does not follow that those capacities necessarily must (or can, or should) become commodities.
Bio technology has created a second order value to body’s as now one’s body is valuable to another for example a woman’s womb, ovum, man’s sperm. Although the capacities of the human body have become increasingly alienable, it does not follow that those capacities necessarily must (or can, or should) become commodities.
The
Reproductive Healthcare Bill: this a bill that is in parliament that addresses
the reproductive functions of the human body and provide a right to make decisions regarding
reproduction free from impediments. “Reproductive health"
means a state of complete physical, mental and
social well-being, and not
merely the absence of
disease or infirmity, in all
matters relating to the reproductive system
and to its functions
and processes. It provides for
contraceptives, rights gestational surrogacy, Rights to abortion. The bill is
currently in the senate so the people impatiently wait to grasp this new
property right legally.
[1]
See Albert Chen, Tattoo You, SPORTS ILLUSTRATED, Mar. 18, 2002, at 26.
(referred to as human bill boarding)
[2] See,
LEASE YOUR BODY, www.leaseyourbody.com (last visited July. 5, 2014).
[3]
See Kerry Howley, Big Business in Body Parts,
L.A. TIMES, Mar. 6, 2007, at A17; Coco Ballantyne, A Cut Above the Rest?: Wrinkle Treatment Uses Babies’ Foreskins,
SCI. AM. (Feb. 12, 2009)
[4]
See David Solomon, Informed Consent for
Routine Infant Circumcision: A Proposal, 52 N.Y.L. SCH.L. REV. 215, 220
(2007–2008)
[5]
Rohan Hardcastle, law and the human body:
property rights, ownership and control 3–7 (2007)
[6]
See Richard Gold, Owning Our Bodies: An
Examination of Property Law and Biotechnology, 32 SAN DIEGO L. REV. 1167,
1192–93 (1995).
[7]Michael
J. Sandel, What Money Can’t Buy: The
Moral Limits of Markets, in
RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW AND CULTURE 122, 124
(Martha M. Ertman & Joan C. Williams eds., 2005)
[8]
David Price, From Cosmos and Damian to
Van Velzen: The Human Tissue Saga Continues, 11 MED. L. REV. 1, 28 (2003)
[9] Honoré
in his landmark paper Ownership
[10]
Thomas W. Merrill & Henry E. Smith, Essay, What Happened to Property in Law and Economics?, 111 YALE L.J. 357,
385 (2001)
[11]
Ibid
[12]
Sup n14
[13]
As had been described by Merrill and Smith Ibid
[14] See
Radhika Rao, Property, Privacy, and the
Human Body, 80 B.U. L. REV. 359, 363–64 (2000)
[15] (51
Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479)
[16]
See Avihay Dorfman & Assaf Jacob, Copyright as Tort, 12 THEORETICAL INQUIRIES L. 59, 74 (2011),
at 73
[17]
See Carol M. Rose, Property as the
Keystone Right?, 71 NOTRE DAME L. REV. 329, 351 (1996)))
[18]
J. W. Harris, Who Owns My Body, 16
OXFORD J. LEGAL STUD. 55, 77–84 (1996).
[19] Meredith
M Baker ‘Law of the Body’ pg 5 A. L.
S Review
[20]
See Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th edn). Oxford:
Oxford University Press.
[21]
See Jesse Wall, The Legal Status of Body
Parts: A Framework, 31 OXFORD J. LEGAL STUD. 783, 785–86 (2011)
[22] See
William D. Hart, Dualism, A COMPANION TO
THE PHILOSOPHY OF MIND265, 265 (Samuel Guttenplan ed., 1994).
[23] See
also GILBERT RYLE, THE CONCEPT OF MIND 15–18 (Univ. of Chi. Press 2002) (1949)
[24]
See Howard Robinson, Davidson and Non
reductive Materialism: A Tale of Two Cultures, in PHYSICALISM AND ITS
DISCONTENTS129, 129–30 (Carl Gillett & Barry Loewer eds., 2001).
[25]
See Guido Calabresi, Do We Own Our Bodies?,
1 HEALTH MATRIX5 (1991).
[26] Sup
note 19. Page 16
[27]
See Martha M. Ertman & Joan C. Williams, Freedom, Equality, and the Many Futures of Commodification, Preface to
RETHINKING COMMODIFICATION, Williams eds., 2005pg 22
[28] See
DEBRA SATZ, WHY SOME THINGS SHOULD NOT BE
FOR SALE199 (2010)
[29]
See K. A. Bramstedt & Jun Xu,
Checklist: Passport, Plane Ticket, Organ Transplant, 7 AM. J. TRANSPLANTATION
1698, 1698 (2007)
[30] See Peter Halewood, On Commodification and Self-Ownership, 20 YALE J .L. & HUMAN.
131, 141 (2008)at 131
[31]
See Jesse Wall, The Legal Status of Body
Parts: A Framework, 31 OXFORD J. LEGAL STUD. 783, 785–86 (2011),
[32]
See Margaret Jane Radin, Property and
Personhood, 34 STAN. L. REV. 957, 966 (1982)
[33]
Ibid
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