Is My Body My Property? A Proposal for the Recognition of Property Rights over Bodily Materials

Abstract

Although it seems axiomatic that a person should own her body, the law in England and Wales is less straightforward. The "no property" rule, which emerged as an obiter dictum in Hayne's Case (1614), still stands today. This principle seems incompatible with medical and scientific advances which treat bodily materials as valuable commodities, and the increased societal and legal recognition of principles of autonomy and self-determination. Consequently, the law has strenuously attempted to reconcile these two by creating common law exceptions such as the "work and skill" exception (rooted in Lockean-Nozick labour theory) and the so-called Yearworth exception. However, there is an absence of a fundamental principle underlying the law's current approach.

This thesis proposes a widening of the definition of "ownership" by adopting the rule-preclusionary conception. First advanced by Beyleveld and Brownsword, th rule-preclusionary conception recognises that I, as a subject, have exclusive control over my body and bodily materials, and I am precluded from having to justify what I do with them on a case-by-case basis. This principle is sufficiently fundamental and rudimentary which can then be used in conjunction with other conceptions such as the "bundle of rights" theory. This thesis provides a two-fold retrospective and prospective argument in support of this. The former argues that the current legal framework already implicitly recognises rule-preclusionary ownership, whereas the latter argues that explicit recognition of property rights provides an attractive solution to prominent problems in the wider medical field.