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Human Tissue Article Summaries Notes

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HUMAN TISSUE
NOTES:
- So IMPT TO NOTE: no one here is really arguing about the outcome (its clear what the best outcome looks like)
o They're arguing over what's the best legal mechanism to get us there

And if you think that the mechanism of property is wrong, you have to say, actually property would generate too many negative outcomes
 And therefore we should have an alternative
- You CAN'T IGNORE THE LAW PART OF THIS DEBATE
o HAVE to read Yearworth, if you want to do property approach

One way to think about it is: how can I get to this outcome? Is it through trusts? Etc

Don't have your arguments descend into something that's too wishy-washy about rights!
- So part of the motivation for Yearworth might be the restrictions around psychiatric injury from Alcock

The problem is that the floodgate arguments from Alcock just don't apply here!
o But unfortunately the Court can't just carve a new exception to psychiatric injury, so they rely on property rights to circumvent those limitations

Remains unclear whether Yearworth was unique on its facts, or will signal the start of a new way of thinking about bodily tissue
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37
Held
- [29] "The law, as we will see, has to some extent begun to be refined in relation both to a human corpse and to parts of a human corpse ; but it has remained noticeably silent about parts or products of a living human body , probably because, until recently, medical science did not endow them with any value or other significance"
- [60] "These appeals will be allowed. We shall set aside the judge's determination of the third and fourth issues before him; substitute a determination that the sperm was the property of the men for the purposes of their claims in tort and, as amended, in bailment and that they are in law capable of recovering damages for psychiatric injury and/or mental distress in bailment; and remit the remaining issues in the actions for determination in the county court,
indeed (so we provisionally consider) by the same judge

NOTE: BOTH their claims in negligence and in bailment were allowed!!
Skene - Yearworth Case Note

1. Introduction
- In JONATHAN YEARWORTH and others v North Bristol NHS Trust, the Court of Appeal for
England and Wales held that six men who had deposited their semen for freezing before undertaking cancer treatment were entitled to be compensated when it was negligently destroyed.
o The Court said that the men had deposited the semen solely for their benefit and that constituted a bailment. That was a significant decision because the law in England and Wales, as in other common law countries, had previously not recognised that people from whom bodily material had been removed (' originators ' ) could have proprietary rights in their bodies or bodily material.

1 Those things were not capable of being ' property ' (as stated in the Australian case
Doodeward v Spence and many earlier cases in the UK).
o No one could legally ' own ' them, subject to the 'Doodeward exception', which enabled other people to obtain legal rights to possess, control, or even sell such material, by undertaking 'work and skill' or conferring 'different attributes' on it.
- The bailment analysis in Yearworth provided a right to the originators to be compensated for the negligent loss of their bodily material without consideration of other matters

2. Yearworth: The Facts
- The plaintiffs in Yearworth were six men who had been diagnosed with cancer. Before starting chemotherapy, they deposited their semen at the Southmead Hospital in Bristol.
o The defendant, the North Bristol NHS Trust, was responsible for that hospital. As stated in the judgments, the men's semen (which contained their sperm) was produced and stored ' for their possible later use ' [3], with some men authorising later use of the semen for ' treating a named partner ' [6](b). Each man signed a consent form for his semen to be stored and the consent form stated that he could withdraw his consent or vary the terms of the consent at any time before his sperm was used [6](b).
o When the men sought to retrieve their stored semen after their chemotherapy, they found that it had been irretrievably damaged after 'the amount of liquid nitrogen in the tanks in which it was stored fell below the requisite level' [8].
o Five of the men alleged they had suffered a psychiatric injury as well as mental distress [10], as they were ' already in a vulnerable condition ' [9].
o The defendants accepted that the semen had been destroyed as a result of their negligence

However, it was acknowledged by the Court in the judgment that their claims had
'limitations or complications ' and ' their worth in damages [would be] relatively small' [12].
A. Claim for 'Personal Injury'
- The 5 men who claimed to have suffered psychiatric injury argued that they had been caused
'personal injury' as well as 'damage to their property'
o The personal injury claim was quickly rejected

The Court held 'it would be a fiction to hold that damage to a substance generated by a person 's body, inflicted after its removal for storage purposes, constituted a bodily or "personal injury" to him ' [23].
 i.e. harm to bodily material removed from the body cannot be personal injury
B. Claim for 'Damage to Property'
- The Court accepted that the deposit of the semen for later use constituted a bailment.
o The unit in which it had been deposited was liable ' under the law of bailment, as well as that of tort ' [50]; the arrangements were ' closely akin to contracts ' [57]; and '
modest recovery ' could be awarded for ' mental distress ' against a gratuitous bailee in such circumstances [59].
- The references to the law of bailment as the basis of the men's right to compensation have important legal implications.
o In order to succeed in a claim arising from a bailment of their semen, the men had to establish first, that the stored semen was property; and secondly, that they had either ' legal ownership ' or a ' possessory title ' to that property, which the Court '
for convenience ' elided as ' ownership ' [25].
2 ----

The categorisation of the semen as property was thus the vital first step.
o In its path was the long-established ' Doodeward principle ' that, as a general rule,
there is no property in a human body or bodily material.
o However, since the early 20th century, many exceptional circumstances have been recognised in which bodily material has been held to be subject to proprietary rights,
some of which were discussed by the court.
Moreover the court criticised the Doodeward principle itself. The Court said that it was ' not content to see the common law … founded upon [a] principle … which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse ' [45](d).
o The principle was ' not entirely logical ' and ' we prefer to rest our conclusions on a broader basis ' [45](d), (e)."
The Court of Appeal held, on the facts of the case, that the men did have ' ownership of the sperm which they had ejaculated ' (emphasis added).
o The term ' ownership ' was used loosely.
o It might mean that the men had the best title or ' all such rights as by law are capable of being exercised over that type of property against all persons including the right to possession of the property and any proceeds of its sale ' .
o However, the CA elided ownership with ' possessory title ' and the basis for its decision in favour of the men was that they had the possessory title.
Moreover, the CA said the men had "ownership of [their sperm] for the purposes of their claims in tort"
o i.e. a right to possession which would found a claim in bailment if their sperm was negligently destroyed

They would presumably also have a claim in conversion, since this can be based on a right to possession (against anyone but the owner)
In deciding that there was a bailment of the stored semen, the Court considered several points 1) First, the men deposited their semen on the basis that they retained control of it.
o 'The sole object of their ejaculation was that, in certain events, it might later be used for their benefit' [45](f)(ii).
o The men had ' negative control ' over the use of their sperm - ie the right ' to direct that the sperm be not used in a certain way ' [45](f)(ii); and they could ' require the destruction of the sperm ' , which is a ' fundamental feature of ownership ' [45](f)(iii).
o It did not matter that their right to ' direct ' the use of the sperm was limited by legislation regarding the use of stored semen in reproductive treatment: ' there are numerous statutes which limit a person's ability to use his property ' [45](f)(ii).
2) Secondly, all parties intended that the semen would be available to the men to use later ,
either for their own treatment or possibly for use by someone else with their authority

The main point was that the semen was intended for later use

Even if their intention was for the semen to be stored and used by another person, it could still be a bailment

The intention for later use negates any possible intention of abandonment 3) Thirdly, not only was it the men's intention for the semen to be available for later use, it was accepted on that basis by the storing party

In other words, the stored semen could not be regarded as ' abandoned tissue ' ,
even if semen might be so regarded in other circumstances.

3 Counsel for the men differentiated stored semen from other ' products of the body which are removed from it with a view to their being abandoned - such as cut hair,
excised tissue and amputated limbs ' [19].
o The Court referred to the American case, Washington University v Catalona in which the university was held to be a donee and not a bailee because ' the donors had abandoned any possessory interest in the tissue '
 For this reason, researchers who have used tissue to develop a new product,
such as a diagnostic test or cell line, may gain a proprietary interest in it and the originator will have no interest.
- One matter that was not explained in Yearworth was the legal source of the men ' s property right in the semen when they first deposited it for storage.
o The court apparently regarded the bailment itself as establishing the rights of the men in the stored semen.
o But if the men had ' bailed ' semen taken from a third party without consent for the men ' s later use, that ' bailment ' would presumably not make the semen their '
property ' so that they would be entitled to compensation if it was negligently destroyed; or to which they would be entitled to regain possession.
 i.e. the law commonly takes property right as a precondition for bailment, not a consequence thereof!
- One answer to the question of how the men's property interest first arose might lie in the statements in Doodeward concerning the right to possession, and the suggestion in that case that a right to possession could have more than one legal basis.
o In addition to the 'work or skill' /'different attributes' test, it was accepted by two of the judges in Doodeward (Griffiths CJ and Barton J) that a person who is in possession of a thing is, without more, legally entitled to possession unless someone else can prove a greater right to possession
 [presumably this refers to factual or physical possession (since legal possession is what is precisely in dispute) - but the men in Yearworth didn't have physical possession! And anyway the whole of a bailment is that physical possession is passed from the bailor to the bailee!]
o A right to possession in favour of originators (or their representatives) has been recognised in a number of Australian cases since Yearworth . In Bazley , 26 Edwards 27 and Re H , 28 widows were held not only to be entitled to possession of their deceased husband ' s stored semen, but also to use it in fertility treatment 29 or to have it destroyed.
- Moreover, the incidents of the originator ' s (or representative ' s) property rights could conceivably extend beyond those of possession, use and destruction, to include other rights within the ' bundle of rights ' noted in the widely-quoted taxonomy of Honoré to cover sale and other transactions for profit (though legislation on human tissue donation and fertility treatment commonly prohibits the sale of bodily material, gametes and embryos).
o i.e. if we own our body parts it would imply we have the right to sale/rent them out?
o After all, the Court in Yearworth recognised the ' rights of property in the bailor '

3. Developments since Yearworth
- Some commentators have argued strongly in favour of a property approach

Others have been more guarded or even opposed
- However, in considering the legal implications, it should be noted that the Doodeward principle was not totally rejected in Yearworth 4

The Court of Appeal noted the cases establishing that a human corpse and parts of a human corpse could be property in certain circumstances.
o Not just the "application of skill" exception, but also "perhaps on some future occasion … even without the acquisition of different attributes, if they have a use or significance beyond their mere existence … for example, they are intended for use in an organ transplant operation, for the extraction of DNA, or for that matter, as an exhibit in a trial"
- The Court of Appeal was certainly critical of the ' Doodeward exception ' and, as noted above,
it based its decision on other grounds.
o However, the Doodeward exception is still good law

Also, the Doodeward approach underlies s39(2)(c) HTA, which refers to the
"application of skill"
- In subsequent Australian cases, cases hve focused on the rights of widowed of deceased men

The widows succeeded, but solely because the semen was regarded as being stored solely for their benefit

The storage and collection constituted the ' work or skill ' required for the semen to become property under the Doodeward principle and the widows were entitled to possession because the doctors who stored or collected the semen were regarded as acting as their agents in doing so
- In England, there have been other developments that might seem to indicate that the principles stated in Yearworth may not be applied more widely.
- In 2011, the Nuffi eld Council on Bioethics suggested that it may be better to concentrate on the rights that originators may want (the ' sticks ' in the widely-cited ' bundle of rights')
instead of focusing on whether excised bodily material is ' property

The law could then distinguish ' between the property rights of the originator with respect to control and compensation (that is, compensation for misuse rather than recompense in the form of economic gain), and property rights with respect to income '
- Alternatively, rights in removed bodily material could be regulated by privacy law instead of property law, as suggested by the Australian Law Reform Commission in 2003; and adopted in legislation in New South Wales in 1998.
o There has been no movement since Yearworth towards using property law in regulating the use of human bodily material in research , which has traditionally been regulated on principles of altruism and autonomy, rather than property law, 45 and through ethical guidelines rather than legislation.
- In all of the UK, including Scotland, it is an offence to hold bodily material intending to analyse its deoxyribonucleic acid (DNA) and use the results in research without consent from the person from whom the material was removed

4. Conclusion
- Yearworth was the first case in which a deposit of human bodily material was held to be a bailment.
o As bailors, they had a right to possession (a proprietary right), so that, on the ordinary principles of property law, they were entitled to be compensated if their bailed bodily material was negligently destroyed.
- That was a major change from the previous judicial reasoning regarding removed bodily material which was based on the Doodeward ' no property ' principle.

5 o Applying that principle, property rights in bodily material could arise only by undertaking ' work or skill ' on the material or changing it so that it acquired '
different attributes ' . The property rights would then be in favour of the person who worked on the material and not the originator.
the Court ' s decision in Yearworth was essentially pragmatic with no examination of ' the moral foundations [on which] … the finding of property is based ' .
o Similarly, the Court did not explore the legal basis on which the men were entitled to possession of the semen when they ' bailed ' it to the Trust.
o Also, not surprisingly, there are continuing debates about whether property law is the most appropriate instrument to regulate issues relating to human bodily material

Goold and Quigley - Human Biomaterials: The Case for a Property Approach
Introduction
- Protecting living and deceased persons, their bodies, and parts therein from wrongful intrusions, interferences, appropriation, and (ab)uses is not a new realm of activity for the law.
o E.g. The tort of battery and the crime of assault protect the person from unauthorised touchings.
- In the face of new challenges that emerged in the twentieth century, the law responded in some cases by utilising property discourse, albeit in a highly circumscribed manner due to a fundamental resistance to treating human biomaterials as property.
o However, recent legal developments suggest that the recognition of property in biomaterials is no longer the complete anathema that it once was.
o These developments, which are outlined in Loane Skene's contribution to this collection, include cases in which biomaterials have been held to be property 'as a means of permitting remedial action and compensation for damage done, and, most recently, in order to permit possession of sperm for the purposes of in vitro fertilisation'.
- Yet even outside of these specific legal circumstances, the ever-increasing set of uses of biomaterials for medical treatment, biomedical research, and industry activities has irrevocably altered the context within which the body and its parts are situated

We already deal with body parts and biomaterials as we do many other things that are accepted as property. Blood, organs and various biomaterials are donated to others for transplant, and to researchers for use in studies

They are sometimes sold, sometimes stolen, and often stored
- In the course of making our case for a property approach, this chapter identifies and examines some of the problems that are caused by eschewing property.
o We examine whether property law provides the right and best mechanism for dealing with the challenges posed by use of bodily materials 6

Using theft as the exemplar, we tease out how attempting to avoid a property analysis causes legal difficulties.
- We elucidate the legal lacunae that resistance to according property status to biomaterials creates.
o We also demonstrate that a property analysis best captures what occurs when bodily materials are donated, and consequently argue that the legal difficulties that can arise (and have arisen) when materials are donated are best addressed by mechanisms already in place to deal with interferences with chattels.
o Similarly, we argue that where biomaterials are damaged or lost, these harms are most fittingly dealt with as interferences with property, enabling those with an interest in the materials to obtain an appropriate remedy.
o We therefore make the overarching argument that a property approach ought to be favoured because of the dearth of protections offered by other branches of law, and to this end offer an analysis that looks at how encompassing human biological materials within the ambit of a property system might work.
- Relying on a property analysis allows us to draw on the same rules we have already developed to manage relationships over a range of other things.
o This is helpful in relation to remedies, but has the wider benefit of providing a framework for clarifying and regulating the interests people have in relation to bodily materials.
o Such an approach need not be inflexible. Just as the rules of property law governing land, chattels and other objects differ in some regards, so too could we adapt property when applying it to human biological materials, retaining those characteristics that are useful or effective, and altering those that are problematic.
- Such an approach would be preferable to a sui generis approach to biomaterials as it avoids the difficulties of creating a new scheme while opening up well-developed legal avenues that address conflicts over the control of corporeal objects
Human Biomaterials: On Uses, Value and Property
- Prior to the medical advancements of the twentieth century, the deceased human body had two main values for those left behind.
o It was the remaining symbol of the person who had died - and hence was treated with care and respect as part of the rituals surrounding death - and it was highly valued for dissection as part of the study and teaching of anatomy.
o The case law from before the turn of the nineteenth century largely reflects this in the resistance to treating the body as property expressed in those early cases.
- However, the scientific breakthroughs of the twentieth century saw a fundamental shift in the value ascribed to human biological materials, which became vital for medical research and also as a source of intimate personal information.
o This shift brought with it a demand, and consequently a market, for such materials.
o It also gave rise to complex situations in which many parties desire access to, or control of, human biological materials
-
- There is also a flourishing private bio-sector in which materials are bought and sold

For e.g. cell lines and cell therapies

It has been estimated that the global cell therapy industry has passed the $1 billion mark in annual turnover.

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