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Organ Donation And Tissue Research Notes

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1. Cases


Doodeward v Spence (1908) 6 CLR 406: M gave birth to still-born dual headed baby. A surgeon took the body and preserved it, later selling it at an auction. M then brought an action for recovery. o Griffith CJ:
? Just because cannot own a corpse at death does not mean that it can never be owned.
? A human body or portion of it is capable of becoming property; it is not necessary to give an exhaustive account of the circumstances in which this is the case but where a person has by lawful exercise of skill or work dealt with the human body so that it is different he may own it. o Barton J: Agreed with above but noted the gross indecency; also describes the baby as a monster. o Higgins J: Dissented on basis that he thought that human being cannot be owned, whether alive or dead.


Dobson and Another v North Tyneside Health Authority and Another [1996] 4 All ER 474: D collapsed at work and later died from brain tumours. During post-mortem the brain was removed and preserved by the doctor who delivered it to the hospital for storage. A brought action against H1 for a failure to diagnose early and then an action against H2 who had disposed of the brain, for damages because the claim against H1 was now harder to prove. Peter Gibson LJ: o Once a body has undergone a process or application of human skill, such as stuffing or embalming, it can be the subject of property in the ordinary way; hence it is submitted that conversion will lie for a skeleton or cadaver used for research or exhibition, and the same goes for parts of and substances produced by, a living person. o There is nothing to suggest that the actual preservation of the brain after the post mortem was on a par with stuffing or embalming a corpse or with preserving a human freak such as a double-headed foetus that had some value for exhibition purposes. There was no practical possibility of, nor any sensible purpose in, the brain being reunited with the body for burial purposes; thus no property was acquired in the brain.


R v Kelly [1998] 3 All ER 741: K (aritist) and L (junior techinician) removed a number of body parts which were then located in the house of K and in the basement of a flat belonging to friends. Rose LJ: o Affirmed above cases and the corpse rule. Thought in this case there was control and possession.


Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2009] 2 All ER 986: Six men diagnosed with cancer gave samples of sperm to be frozen and stored for their later use. The tanks which the sperm was stored in were not cold enough and the semen thawed. Men brought proceedings alleging depressive disorder as a result. The trust admitted breach of duty but denied liability. Judge CJ: o Damage to and loss of sperm does not constitute personal injury; this is a fiction and must deal in realities. o The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. o Developments in medical science now require a re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes or otherwise. o The easiest course would be to uphold the claims of the men to have had ownership of the sperm by reference to the principle first identified in Doodeward's case; there is no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. o However, court was not content to see the common law in this area founded upon the principle in Doodeward's case, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation.
? Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. o Conclusions are made on a broader basis. For the purpose of the claim in negligence there was ownership;
? By their bodies they ejaculated sperm;
? Sole object was that might be used for benefit in future.
? Inability to direct the sperm does not derogate from the fact that they owned the sperm;

* There are numerous statutes which limit a person's ability to use their property;

* Negative control, in the form of consent requirements remains absolute.
? Act recognises a fundamental feature of ownership; that can order the destruction of it.


Evans v Amicus litigation (as a contrast to a property based approach): Couple consented to the freezing of embryos whilst F underwent treatment for cancer. When the treatment was over the couple split- M wrote to the clinic to say that

1 they should be destroyed. F applied for legal proceedings to stop that happening as it was her only chance of having a child. Claim on the basis of statutory construction and in the alternative, the Human Rights Act. o Court adopted a continuing consent requirement but did not make reference to property rights.


Bazley v Wesley Monash IVF [2010] QSC (Aus): B was due to undergo cancer treatment and so had is sperm stored by the hospital. He later died and W made an application requesting that they continue to store the sperm. Issue as to whether had rights in his sperm which vested in his estate and beneficiaries upon death. o It defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken. The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. o The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. o Court in this case uses citations from Yearworth to aid it in coming to its new conclusion on the status of sperm.


Moore v Regents of the University of California and Ors (1990) 51 Cal 3d 120 (USA): An action was brought by P against a physician for using his cells in potentially lucrative research without his consent. Majority Judgement: o One may earnestly wish to protect privacy and dignity without accepting the extremely problematic conclusion that interference with those interests amounts to a conversion of personal property. o Three reasons why it is inappropriate to impose liability for conversion for this complaint:
? Policy considerations counsel against extending tortious liability in this way:

* Autonomy is already protected by doctrines of informed consent/fiduciary duties.

* Should not discourage engagement in socially useful activities.
? Problems in this area are better suited to legislative resolution.
? The tort of conversion is not necessary to protect patients' rights. Liability based upon existing disclosure obligations, rather than an unprecedented extension of the conversion theory, protects patients' rights of privacy and autonomy without unnecessarily hindering research.


Washington University v Catalona 490 F 3d 667 (8th Cir 2007) (USA): Issue as to whether there could be ownership of biorepository materials and whether it was the patients or the university doing research who owned the products. o Where, personal property is of a type that is not subject to title, exclusive possession and control of such property creates a presumption of ownership.
? The research participants intended to donate their prostate tissue and blood samples to Washington University for medical research. The research participants knew the research would not benefit them personally but they hoped the research would benefit future generations. o In the only two reported cases dealing with the question presented, both Courts concluded that research participants retain no ownership of specimens they contribute for medical research (Moore). o Also thinks that to hold in favour of the patients would be a bad policy decision.


Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 (Aus): Raised the question as to whether a woman had the right to take sperm from the deceased partner so that she may conceive a child i.e in storage. o A consideration of rights that flow from a recognition of something as property is complex and beyond the scope or need of this case, Recognition of the deceased's sperm as property must be understood in the context of the declaration sought i.e. that is that she is entitled to possession. The Court is not being asked to recognise a property entitlement beyond that. o It is of some use to see that the law has not remained rigid but has been applied with a flexibility, albeit significantly constrained, in order to meet new situations exposed by the advancement in medical technology. o Order in favour of P was made; noting that child would likely be born to a loving family; intention of H.

2. Ownership


JW Harris, 'Who Owns My Body?' (1996) 16 OJLS 55 o The essentials of a property institution are trespassory rules and the ownership spectrum; the latter is the range of open-ended relationships which are presupposed and protected by the trespassory rules. The items on the ownership spectrum are united in three respects only:
? They all involve a relation between a person and a resource;
? The privileges and powers which they compromise are open ended;
? The authorise self-seekingness on the part of to whom they belong.

2 o o


Then uses a Locke style conception of coming into ownership and comes to the conclusion that no person can own their body; rhetoric in this area may be illustrative but cannot be decisive. Trespassory rules are not applied to persons; freedom is not ownership. Basically: although there are no moral difficulties in regarding the body as property there are technical legal ones i.e. not transferable or divisible. Ownership does not come about in the same was as other property.

R Brownsword and D Beyleveld, 'My Body, My Body Parts, My Property?', (2000) 8 Health Care Analysis 87-99: o In principle, there is a distinction between rights relating to the taking of body parts (Right A) and rights relating to the use and control of body parts (Right B).
? Once we are contemplating rights of the latter kind, we are in the natural territory of property rights. o If Right B are property rights, it is perfectly clear why fresh consent must be obtained each time a fresh use is proposed. If construed as rights driven by freedom of conscience, it is not clear why fresh consent is required so long as the proposed uses do not impinge on those specific uses that are prohibited on religious grounds. o The rights lying behind informed consent regimes are most plausibly explained as proprietary; and to focus the rule preclusionary conception of property on things other than our own bodies seems to be a classic case of holding the telescope the wrong way round. It hardly needs saying that the implications of recognising property in our own bodies and body parts would be radical. o Most proprietary types of rights are exclusionary ones which it seems we now recognise in that we reject that other people can make claims over our bodies- apply this to European law.




o o

J Herring and PL Chau, 'My Body, Your Body and Our Bodies' (2007) 34 Med LR 15: Emphasis on connections. Bodies interdependent such that not an all or nothing game. The main benefit claimed by the property model is that it enables individuals to retain control over parts of their bodies when they are removed. Integrity/privacy-based models may provide protection against a person's bodily part being removed against her wishes through its emphasis on the right to bodily integrity, but it provides no obvious rights over removed bodily material and no claim to any profits created through the use of it. It may be that this criticism of a integrity/privacy-based model could be overcome by developing some kind of privacy right to control separated body parts, but such a right would not be directly analogous to privacy rights as recognised in the law to date. To constitute property, an item has to possess certain characteristics and be subject to certain kinds of treatment. As bodies are not transferable or divisible, we cannot treat them as property. Further, rights of property in law come about in a variety of accepted ways (e.g. the fruits of labour; Harris/Locke). However, our bodies are not something that we have created or were transferred to us from another. So even though we may feel as if our bodies are our own, they cannot be regarded as property in the way that that term has been understood by property law. There may also be a logical problem in saying that we own ourselves. That is, there needs to be a clear separation between 'the owner' and 'the owned'. We can only say we own our bodies if we see a clear distinction between 'us' and 'our bodies'. This kind of reasoning leads some to prefer seeing rights in respect of the body flowing from the right of privacy. Privacy theory, on the other hand, forecloses such bodily fragmentation by identifying the person with his or her physical presence. Hence, privacy shields the individual against corporeal invasion and alteration and preserves the unity and integrity of the embodied being. As our bodies partake of the great giving and taking between all bodies, there is an argument that it is only just that a body be made available to other bodies, if it holds the key to assisting them. In other words, there could be a moral obligation to allow one's bodily material to be used for the benefit of others. This might even lead to a presumption that an individual consents for her material to be used for medical research. Any argument that this material was just Mr Moore's should be resisted. His body and spleen were the product of the interaction between his body, other bodies, and the wider environment. Its removal and use in another's bodies could be regarded as no more than the continuation of the interchange between him, other bodies and the wider world from which he himself had benefited. Organ donation should not be regarded as unnatural activity requiring an unusual degree of consent from all interested parties before it is permitted, but rather as a natural part of the interaction between bodies. The law should therefore facilitate organ donation to a much greater extent than it currently does.


o oSkene, L 'Proprietary Interests in Human Bodily Material: Yearworth, Recent Australian Cases on Stored Semen and Their Implications' (2012) Medical Law Review 227: Notes the significance of Yearworth and Q's for future. It remains to be seen whether the principles in the stored semen cases will be extended to other types of bodily material or confined to reproductive material, which may be regarded as being in a category of its own. If a man's semen is obtained without his consent for future use, for example, in the theft of a discarded used condom, an agreement for storage by a third party with a view to later use by the 'thief' would not give rise to proprietary rights in favour of that person. Perhaps that goes without saying. But other cases may be less clear. If a person obtains bodily material in good faith and deposits it in a repository for later use, but the initial collection was in fact unlawful, the 'bailor' could presumably not obtain proprietary rights arising from the bailment that are better than he or she would had at the outset.


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