Goold, Imogen --- "Sounds Suspiciously like Property Treatment: Does Human Tissue Fit within the Common Law Concept of Property?" [2005] UTSLawRw 3; (2005) 7 University of Technology Sydney Law Review 62

Sounds Suspiciously like Property Treatment: Does Human Tissue Fit within the Common Law Concept of Property?

Imogen Goold*

…the legal treatment of bodies and body parts sounds suspiciously like property treatment.

Lori Andrews[1]

In Australia, human tissue use is regulated by a piecemeal, sometimes conflicting body of legislation and case law.[2] In general, these laws have been developed to deal with specific uses of tissue, such as the Human Tissue Acts,[3] and hence do not form a body of rules that can be easily extrapolated to emerging uses of tissue. The acts are limited in scope and deal only with consent to the removal of tissue, not with its subsequent use. They also cover only the removal of tissue for transplantation, medical and research purposes—which are rapidly becoming only a few of many uses to which human tissue may now be put. Beyond these acts, only for forensic purposes is the collection, use and storage of tissue samples legislatively controlled.

Ethical guidelines, particularly those released by the National Health and Medical Research Council (NHMRC), play a significant role in deterring misuse of tissue within a research context.[4] While such guidelines have been greatly influential in encouraging ethical research practice, their lack of legal force precludes them from providing enforceable resolutions to conflicts of interest. As ethical guidelines do not provide a legal cause of action, individuals may be left without a remedy against a person or institution who has misused their tissue.

Finally, the courts have developed a general rule against property in human bodies and their parts, with some exceptions. The major exception allows that human tissue may be property once it has been preserved through the application of work or skill.[5] This rule and its exception have been considered in only a few cases, mostly concerning the theft of tissue[6]; applications for access to test samples have been considered[7] and even within this class, the courts have been divided on both the law and its application.[8]

Increasingly, this situation is becoming untenable, for the uses of tissue, and the interests held in it are expanding, while the legal system fails to keep up. For one example, human tissue is now used to develop valuable therapeutic products, yet the only controls on who may buy and sell are the Human Tissue Acts’ prohibitions on sale without processing.[9]

As another example, where organs and bones are retained, an individual seeking their return for burial has no legal means of compelling return and in Australia must rely on the goodwill of researchers and hospitals. Aboriginal communities that have sought the return of their ancestors’ remains from museums are a particular example of the problems that can arise in this context. Despite some recent repatriation, Aboriginal groups have pointed out that most remains still rest in museums.[10] This is in part due to the fact that many museums refuse to return remains. In late 2002, a number of museums in Europe and the United States issued a declaration opposing repatriation. The signatories argue that maintaining large collections that promote culture is more important than the desire of individual countries or racial groups for the return of artefacts.[11] Without a legal remedy, communities are unable to give those remains a proper burial, and to their minds the spirits of those who died cannot be laid to rest. Similarly, the law provides few answers to questions of who has rights to store and use banked cord blood; or how disputes over access to tissue samples for paternity or DNA testing are to be solved. In more general terms, the law as it now stands does not provide guidance on most of the potential future uses for tissue, on its storage, on how and when it may be removed (save in the context of research, forensics and transplantation), on the rights of the person from whom it was taken and on those of the person who gains possession of it. The specificity of the acts and the ethics guidelines in place mean that they have neither the breadth nor the flexibility to deal with new uses and problems. One response to these issues has been the view that human tissue should be deemed property, prompting a broad and complex debate on whether that would be legally workable, pragmatic or ethical.[12]

This article does enter into the general debate over whether human tissue should be dealt with through property law, which has been widely considered.[13] Instead, it seeks to add to the general debate by providing a different perspective on the central question of whether tissue can or should be property. It unpacks the notion of property and then examines how it can apply to tissue to illuminate more clearly what sort of rights and duties would be created in relation to tissue by according it property status. By analysing the concept of property in this way, the article aims to determine whether human tissue has the hallmarks of what the common law considers to be property and what this can tell us about the applicability of property law to human tissue. It is argued that this approach can be used in addition to other analyses of the property question; it is not an alternative methodology, but rather an additional way of looking at the question that can improve how we continue to consider the issue of whether tissue should be property.

Each incident of property will be examined in turn and with reference to some examples of tissue use, to analyse which of these incidents can be applied to tissue. Two examples of how combinations of some incidents can be observed in how tissue is used will then be examined. Some consideration of the different concerns raised by renewable and non-renewable body tissues in relation to the property question will also be examined at this stage. The paper will conclude by weighing up how well tissue has been seen to fit within the concept of property, and comment on how this affects the general debate over property law and human tissue. It should also be noted that although this paper concludes that human tissue can fit within the concept of property, and hence that it would at a basic level be possible to use property laws to regulate tissue use, this does not necessitate an argument in favour of doing so. This paper leaves the second question—the “should” question—open. There may be good reasons not to use property law to regulate tissue use. However, by taking this approach the paper marks this out as a separate issue that requires focused debate, instead of (as is sometimes the case) conflating this issue with debate about whether property law could effectively regulate the use of tissue.

THE BODY AS PROPERTY DEBATE

To date, the common law approach has been to accept the general rule that bodies and their parts are not property. This rule emerged in the 18th and 19th centuries, in which a string of cases held that corpses were not property.[14] In the early 20th century, however, an exception to the rule was upheld by the Australian High Court in Doodeward v Spence.[15] In that case, it was held that there could be lawful, continuing possession of a corpse and that bodies and parts could become the subject of property rights “when a person has by lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least against any person not entitled to have it delivered to him for the purpose of burial.”[16]

Subsequently, courts have applied this exception to the rule, or attempted to apply it, in a number of cases. Dobson and Another v North Tyneside Health Authority and Another[17] concerned the retention and treatment of stored brain tissue preserved in wax and it was held that such preservation was not sufficient for the brain to be property. By contrast, two years later in the 1998 case of R v Kelly,[18] the court held that body parts preserved and retained in the Royal College of Surgeons were property under the exception to the rule and Kelly could therefore be guilty of stealing them.

One reason the courts have begun to accept that body parts should be treated as property through exceptions to the general rule is that in many instances, the way human tissue is dealt with closely reflects the way items of property are treated, both by society and by the legal system. If they are dealt with in the same way, the argument goes, then it may be that the laws of property are a suitable means of regulating dealings with human tissue. Similarly, there has been major academic debate in this area concerned with whether excised human tissue should be accorded the status of legal property.[19]

Generally, this debate has been cast in terms of a property/no property dichotomy, and has been argued from legal and ethical perspectives (often focusing on achieving desired outcomes, rather than the strict application of principle). The debate has not, however, been characterised by a focus on whether the law can admit human tissue as an object of property, but on the pros and cons of according tissue property status in a particular setting. Debate about these pros and cons often conflates two questions—whether tissue could be effectively regulated through property law concepts, and whether it should be so regulated. This paper examines the first question, cast as whether human tissue can fit within the legal concept of property.

THE CONCEPT OF PROPERTY[20]

Common law property systems are mechanisms by which access to, and control of, resources are regulated. They are both legal and social institutions, acting as an organising system where a resource is relatively scarce. As such, common law property is a system for resolving disputes between parties with different interests in an object or thing. Where more than one party wishes to use or possess an object or thing, property rules work to determine who has the better claim to it and to protect that claim, or right, from others. These rights are protected by a rules-based designation of control and the protection of that designation until it is lawfully altered.

It becomes apparent, then, why the idea of regulating human tissue through such a system has been suggested, for that tissue is increasingly a substance which different groups wish to access and control. Where a particular tissue sample is sought (either for forensic purposes or because it has unique uses in research), tissue also has one of the other characteristics of objects of property—relative scarcity. It is a substance in which different people have competing interests, and the most basic purpose of property systems is to determine whose interest, claim or right will prevail.

When dealing with corporeal objects, the common law does not really determine whether an object is in itself “property”. Rather, it is more accurate to view the law of property as a system delineating which things may have property rights exercised over them and what may be included within those rights.[21] An object forms the centre of a web of relationships between people, each of whom has rights with regard to that object.[22] Together, these rights determine how each person may deal with the object.[23]

A particular difficulty of defining property is that the aggregate bundle of rights of which it is composed may differ in scope, in definition, in character and in effect. The bundle is not the same nor does it work in the same way in relation to every object. Rights may vary due to the character of the person who possesses them, when they are possessed and the nature of the subject of those rights. For example, the property rights which vest in a person over an intangible object such as some form of intellectual property will differ from those which vest in a tangible object like a chair. An object may be owned in a number of distinct ways and these rights are all theoretically separable from one another. Yet, it is this complexity that lends the concept of property the very flexibility that suits it to regulating the wide and varied range of relationships that individuals may have with regard to human tissue. With flexibility comes the ability to adapt to novel forms of property, of which human tissue may be one.[24] This complexity also highlights the conceptual heart of property law, namely that it aims to recognise and regulate conflicting interests and relationships.

A Bundle of Rights: The Incidents of Property

There are eleven generally accepted property rights, though they are more often referred to as the “incidents” of property as they include powers, liabilities and the like.[25] This is usually called the “bundle of rights” approach, which as it is now conceived is essentially a combination of Hohfeldian rights analysis and the later work of A M Honoré.[26]

Hohfeldian rights analysis divides rights relationships into a number of specific types, conceptualising them as aspects of a relationship between individuals over an object. In this model, legal relations are organised into elements, opposites and correlatives.

The four elements of legal relations are: rights, privileges, powers and immunities.

A correlative means a duty, no-right, liability or disability that corresponds to a particular element. Where the one arises, the other arises with it, as a relationship will always involve more than one party (even if one party is “all the world”). Each element and correlative describes the position in which those parties sit—the power they may hold, the immunity they may enjoy or the right they may claim.

Opposites represent the situation that exists when the element is not held. For example, where a person does not have a power, he or she can be said to be “disabled”. These elements, opposites and correlatives have been termed the “lowest common denominators of the law”,[27] and are summarised in Table 1. Collectively, they will be referred to as “rights” for the purposes of this paper.

Table 1. The Hohfeldian Analytical Vocabulary

These four sets of elements, correlatives and opposites are the basic structures of property rights. However, alone they say nothing of the content of those rights, but describe only the form those rights may take. This content is provided by Honoré’s description of property incidents that will now be examined.

Honoré outlined the eleven incidents and used Hohfeldian terms to describe them, including the notion of rights and correlatives. These incidents of property, according to Honoré, are each aggregates of various forms of “rights”, such as the right to use which consists of both a claim-right to use and the privilege to exercise that claim-right over a certain object.[32] These incidents are descriptive of the rights that common law property systems allow to be held in objects to regulate allocation, and Honoré describes them as the “standard incidents of ownership”[33] common to “mature” legal systems.

If all eleven incidents are vested in one individual then that individual possesses full ownership of the object to which those incidents relate. However, property law within the common law system does not require that one individual hold all eleven incidents to have a property interest in an object. Rather, the common law as described by Honoré’s concept of ownership allows for a more fragmented approach to the ownership of object, wherein a number of individuals may hold certain rights in an object and each will possess a property interest though not full ownership itself.[34] Indeed, it is rare for any one individual to hold the entire set of rights in an object. An individual will more often possess a combination of them, while another will possess some of the remaining rights.

The aim of listing these incidents is not to define any necessary conditions of a property relationship, but to illustrate certain common features which link such relationships. The incidents aim to sum up the diverse range of property rights and relationships existing at common law by creating a wide catch-all list of possible interests, rather than by providing an exclusive list of compulsory aspects. Further, the inclusion of various other liabilities and prohibitions is an attempt to shift focus from a view of property centred on rights, to clarify that the property relationship is complicated by other interests beyond those which constitute the powers held by an individual over an object. While each of these incidents or rights has particular characteristics as privileges, powers and the like, the general descriptors “incident” and “right” will be used to refer to them collectively. Honoré and others use this method, and it is grammatically less confusing.

Table 2. The Eleven Incidents of Property[35]

CAN HUMAN TISSUE FIT WITHIN THE CONCEPT OF PROPERTY?

Having begun to analyse what property is, it now becomes possible to consider whether human tissue does bear its hallmarks. To determine whether human tissue can fit within the concept of property, three further questions will be posed in the context of each of the eleven property incidents. First, can the incident be applied to human tissue, meaning is it possible to do so effectively and without producing absurdity? Second, is this incident already reflected in the way human tissue is dealt with? Third, does the legal system uphold or recognise this incident in relation to human tissue? The answers to these questions will show not only how far tissue could be fitted into a property system, but perhaps how far it already has been.

1. Right to Possess

The right to possess is a claim-right to exclusive physical control of an object, and with this comes the complementary claim-right to exclude others from controlling the object.[36] If the object cannot be physically possessed, that is, where the object is intangible or immovable, this right may be regarded as a right to exclude others from use or from benefit derivable from the object. Others are under a correlative duty not to take exclusive control, which is reflected in laws prohibiting theft.[37]

This right to possess is, according to Honoré, “the foundation on which the whole superstructure of ownership rests”.[38] Property systems often focus on protecting possessory rights to enable protection of other property rights. For instance, in many cases it would be nearly impossible for a legal system to protect the rights to use and manage if anyone was free to take possession of the object of those rights. For example, a person may have the right to drive his car as and when that person wishes. However, without a right to possession which is upheld against others, anyone may rightfully sit in the car, take control of it or exclude the individual from entering it.[39] For this reason, the right to possess is a right in rem, that is one which can be held out against all other people, aside from those who fall within certain exceptions.[40]

Could a right of possession be exercised over human tissue? Tissue is a tangible, visible object, whether in the liquid form of blood or as a solid organ or piece of skin. As such, clearly it can be physically held, and thus it is possible for tissue to be held in an individual’s physical control. It is also possible to exclude others from it either by placing it inside a safe or securing it in some other form of container which is protected from removal, as even an entire body is small enough and sufficiently containable to be kept in a secure container. Tissue, in fact, is more amenable to being the object of a possessory right than many other objects which one may already legally possess, land being a prime example.

Is something akin to a right of possession already asserted over human tissue? In newborn screening programs, newborn screening cards are securely stored in hospitals, and others are prevented from using them without permission. The same can be said of tissue held for pathology or testing purposes which are retained by laboratories and are generally not released under any circumstances, even to the person from whom they were originally taken. Similarly, scientists possess tissue samples used in research and exercise control over who may access them, as do museums that hold physical remains. Reports of tissue retention in Australia and the United Kingdom over the past five years have also demonstrated how widespread tissue possession has been.[41]

The law has upheld these and other possessions, and in some cases made it an offence to interfere with possession. Theft prosecutions in the cases of R v Rothery,[42] R v Welsh[43] and most recently R v Kelly[44] are instances where the legal system has upheld a right to possession. In Kelly, the Royal College’s right to possess was tacitly recognised by the finding that Kelly had stolen preserved body parts from its museum, while in Rothery and Welsh, the police having possession of blood and urine samples were able to defend that right against interference even from the source of the tissue. Both Rothery and Welsh were effectively regarded as under a duty not to interfere with the samples taken from them. Human tissue both lends itself to being possessed and is in fact often already possessed, both in a real and in a legal sense.

2. Right to Use

Taking a narrow view of “use”, the right to use does not include the rights to manage and to reap the income of an object. It is a claim-right to the personal enjoyment of an object, or in some cases a privilege to use it. The list of uses to which an object may be put is open-ended, but its scope may be limited by rule of law. Where a person has a right or privilege to use an object, others will either be under a duty not to use it, or have no right to do so.

Whether it is possible to uphold a right or privilege to use human tissue is perhaps best answered simply by pointing to the vast array of uses to which it is already is put. Human tissue has acquired a myriad of uses in recent times, but even before the advent of scientific and medical developments it has long had a place as a valuable resource. Tissue is clearly used in testing and pathological examinations; for treatment (namely donated organs and tissue); for medical research; in forensic procedures; and even as artwork and educational displays, as the work of Mark Quinn and Gunther von Hagens demonstrates.[45] It is in fact almost unnecessary to ask if tissue is used, as it has been for centuries.

Many of these uses are sanctioned by the legal system, though often as privileges rather than as rights to use. The Human Tissue Acts are explicitly designed to legalise certain uses, though as noted in Chapter Four, they do not entirely achieve this. Use of organs for transplantation is legal, and can be regarded as giving surgeons a privilege to use organs for treatment. Similarly, the NHMRC National Statement on Ethical Conduct in Research Involving Humans (National Statement) in conjunction with the Human Tissue Acts condone the use of tissue for research. The police can seek to take blood samples and swabs for forensic purposes in accordance with the Crimes Act 1914 (Cth) and state legislation,[46] and individuals are under a correlative duty to supply samples where the law requires.[47] Tissue use is both possible, and legally sanctioned.

3. Right to Manage

The right to manage is a combination of a power to determine who may use an object and how they may do so, and a claim-right that the object is dealt with as directed.[48] Others are under a correlative liability to having their relationship to the object altered, perhaps by having been given a right to possession and a duty to use it only as authorised. Management power allows a person to enable others to deal with the object in a manner which would otherwise be prohibited. For instance, the owner of a car may allow a person who has no right to use the car to do so—perhaps through a licensing agreement, as is the case in car rental operations.

There is little legal difficulty with according a power of management over human tissue. The person holding that power could use it to allow others to perform research on a sample, to test it, to store it as part of a research database or to dispose of it after removing it during surgery. In fact, human tissue is well suited to being subject to a management power. Such a power could be given to a person who has a very strong interest in tissue, most likely the person from whom it was taken. That person would then be able to empower a pathology laboratory to perform a genetic test on it, but would still be able to prohibit them from using the sample in research.

Management power works well in the context of tissue as it allows for more than one person who has an interest in a portion of tissue to pursue that interest, while giving overarching control to a person who will be the most detrimentally affected if it is dealt with in a way that conflicts with his or her interests.

Examples of management powers and rights being asserted over tissue can be readily found. It could be said that a person who supplies tissue to a testing laboratory is authorising that laboratory to perform tests on it. The laboratory would not perform tests that were not authorised, and in effect would be acting as if under a duty to deal with the sample provided only as requested. For example, a pathology laboratory is not permitted later to sell tissue or test it for other conditions. This kind of restriction could be constructed as a management power, although the legal and ethical regulations that cover pathology laboratory use of tissue do not legally construct it in this way.

Where tissue samples are stored, the organisation that stores them exercises management powers by determining who may have access to them. For example, hospitals and testing laboratories restrict access to newborn screening cards, allowing researchers to use de-identified cards[49] and the police to use them in accordance with relevant memoranda of understanding.[50]

The laws and ethical guidelines regulating to the use of tissue can be viewed as protections of management rights and powers, as they are in some ways mirrored in requirements of consent. Tissue cannot be removed without consent, according to the Human Tissue Acts, and those acts aim to restrict use of removed tissue to certain purposes, such as transplantation, as determined by the source. The NHMRC National Statement is a better example, however, as it explicitly requires that tissue samples be used only in accordance with the terms of consent given by the person from whom the sample was taken.

Effectively, the National Statement recognises a power or right of the source of the sample to direct what sort of research may be performed on it, and by whom and whether it may be stored. The researcher is placed under a correlative duty by the National Statement only to use the sample in accordance with those terms, and incurs sanctions for transgressions.

4. Right to the Income

The right to the income partially overlaps with the right to use. The right to the income allows owners to benefit from any profits that may be generated by the object, either through using it themselves or allowing its use by others. Income may be derived simply by using something, such as by living in a house.[51] Income might also be generated by using the object to produce a valuable product or service; through exploitation of the object by working on or with it, or by allowing others to use the object in return for something else, such as money.

One example of this occurring (and being sanctioned by the law and ethics guidelines) is that researchers using tissue are not precluded from profiting from the developments achieved through their research, particularly pharmaceutical companies developing drugs for sale. Tissue can be used to test pharmaceuticals which are sold for profit. It can also be used to cultivate cell lines that can then be maintained for varying lengths of time and profitable uses made from them, such as in research or in producing therapeutic substances. The case of John Moore in the United States, where a highly lucrative cell line was developed, is a famous instance of the income that can be generated using tissue in research.[52]

This is one of the most difficult issues in the debate about applying property rights to tissue. Generating income from tissue could be criticised. But showing that such a right already exists does not suggest either that it is right or wrong for this to be so. Nor does it mean that allowing tissue to be property is inherently problematic—each of the incidents of property is separable, and the right to the income can be excluded as a right in tissue. What this section shows, though, is that that right is already being exercised in accordance with the law and hence that tissue has the capacity to be subject to a right to income.

5. Right to the Capital

The right to the capital of an object is an aggregate of a power to alienate it, and privileges to consume it or to waste it. It is a right to access the value held in the object itself, rather than the value it may generate without being diminished. The power of alienation accorded by a right to the capital of an object allows the owner to alienate it during life or after death, and this may be done via sale, gift or other means.[53] This power will pass to others when the owners have passed title to them. The privilege to destroy enables the holder of the right to use it as a resource that will be consumed by that use, while the privilege to waste allows the holder to let it degenerate.[54] This right may, like others, have restrictions upon it, perhaps where it is in the public interest for an object not to be destroyed, though that approach is somewhat at odds with a liberal conception of ownership.

It is certainly possible that tissue may be wholly transferred by gift or by sale (where the capital value is obtained by the source). For example, it would be possible to sell blood, hair, and tissue samples, particularly given the value of some of these tissues to research and other profit-making activities which could create a demand market. It should be highlighted, however, that the power to alienate under this incident does not have to equate to a power to alienate within the market. It can mean simply gifting or transferring tissue permanently, such as by donating blood or giving tissue samples for research.

The right to the capital value of tissue, and gifted transfers of tissue without compensation, are both legally possible in Australia, although most types of such transfers are legally prohibited. The sale of human tissue is largely prohibited in Australia, however all states and territories allow for the exception of “processed” tissue for therapeutic, scientific and medical purposes.[55] This would seem to allow commercial sale of preserved tissue for these purposes. Generally, the legislation has been interpreted as prohibiting sale, particularly of entire organs for transplant. There is no legislative definition of the scope of the processing exception, nor has it been judicially considered. However, it is most likely to apply only to researchers and perhaps hospitals that have stored tissue rather than individuals who seek to sell their own body parts, as the exception extends only to processing where “the sale or supply is made for the purpose of enabling the tissue to be used for therapeutic purposes, medical purposes or scientific purposes”.[56]

Donation of tissue is also a form of transference, and one which is not only possible under current laws regulating tissue, but one which is actively encouraged at many levels. For example, research participants give portions of their tissue to researchers who may then possess and use them as part of their study. They gain full control over the samples, subject of course to ethical requirements. The same applies to tissue provided for testing, in that it is transferred and the receiving party gains the capacity to use it in a particular way subject to some restrictions, and does not return that tissue and is not required to. The reality is that a relationship of transfer surrounds tissue in all facets of its use once excised. Indeed the very reason for excision, especially after death, is to transfer that tissue permanently to others, and this reason is not only sanctioned, but promoted through organ donor programs and the Human Tissue Acts.

6. Right to Security

Security in the context of property means an immunity from expropriation of the object. Owners may control and possess objects for as long as they choose, provided there is no rule of law that allows circumvention of this right. In general, this immunity will exist until the owner becomes bankrupt or the property is liable to execution for a debt. State authorities may also retain powers to expropriate property in some limited, legally permitted circumstances, in which case appropriate compensation must be paid. It could be argued that, if a general power to expropriate made the taking of property legitimate as long as reasonable compensation was given, a system of property would again be incapable of functioning.[57] For example, if A cannot be sure that he will have possession of his land, he will have little incentive to plant crops on it or improve it if it could be arbitrarily taken away from him at any time. Therefore, it would be irrational to improve or use property in any but a very short-term sense, which would prevent production and hence the functioning of the economy.

It would generally be possible to make tissue immune from expropriation in the same way other items of property are immune. This may, however, interfere with the accepted practice of taking organs from the deceased where no dissent has been expressed and also with the accepted ethical practice of using anonymised tissue samples for research. In these cases, however, it is of course possible to make exceptions to the immunity if these practices are to continue. Similarly, police could be given powers to appropriate tissue samples found at crime scenes or taken from suspects, where the exception is in the public interest.

There appears to be an expectation that excised human tissue will be immune from arbitrary expropriation. In many of the interviews conducted by the author, pathology laboratory technicians, hospital staff and medical researchers spoke of tissue as something they were able to use without fear of its being claimed by others. Conversely, the incidences of organ and tissue retention uncovered over the past six years have demonstrated that people are incensed when body parts are taken without consent.[58]

A general immunity from expropriation also appears to be protected by the law in some situations. In Roche v Douglas as Administrator of the Estate of Edward Rowan (dec’d)[59] the Supreme Court of Western Australia did appropriate a tissue sample from the Western Diagnostic Pathology, but this can be regarded as a legal limitation on the immunity, and it is not unique in law for there to be such limitations where it is necessary for the courts or the government to acquire property which it requires.[60] The case of R v Kelly[61] is another example of the law preventing expropriation, with the court upholding the security of the preserved body parts held by the Royal College. Further, having once obtained possession for an authorised use, there are as yet few, if any, rules enabling others to reclaim tissue. The best that can be said is that tissue samples used in research that the individual later objects to may see researchers required to cease that use in accordance with ethical guidelines. Similarly, while genetic profiles must in some cases later be destroyed by police after use in forensic investigations, the police have a right to continued possession of the actual sample which is secured by the legislative provisions and the common law.[62]

7. Incident of Transmissibility

The power of transmissibility gives the owner the ability to devise or bequeath the object. Hence, upon death the object will be transmissible by will, or otherwise in accordance with the rules of succession, to the owner’s successors.[63] The owner’s interest is indefinitely transmissible—there being no limit on the number of transmissions which may be made.

Allowing people to devise excised portions of tissue and organs upon death would not produce absurdity per se. Organs and tissues are already taken from dead bodies and given to others, the only difference would be that the person from whom they are taken would previously have chosen the recipient. For example, one could choose to bequeath one’s kidneys to a relative who needs a transplant. While this is not absurd, it would disrupt the present methods of organ allocation which is determined according to the need and health of the potential recipient. Allowing people to donate their organs to family members who may not be yet in grave need would exclude others who need the organs more, and hence may not be ethically defensible (although these persons may only be prepared to donate to family members at all). On this basis, if donation of non-essential organs by living donors is already lawful, expanding this to donation after death may not be too problematic. Tissue donations also occur every day, with many people transferring organs, corneas, bone and skin for transplantation and to benefit scientific research.

The law does currently allow for bodies and their parts to be donated upon death in some contexts—one may donate one’s body for scientific or anatomical use and of course, donate all one’s organs for transplantation—however a donor cannot legally direct to whom these will be transferred (and not by will). The testator may make directions in his or her will as to the disposition of the body in general, but these will have no legal force.[64] It appears, then, that the law does not presently allow transmissibility of tissue by will or after death to a great extent. This might, however, be partially attributed to the limited uses after death that are currently condoned by the law, rather than a principled objection to directing how tissue should be dealt with through succession laws. Also, for the policy reasons noted above, it has not been considered acceptable to donate organs directly, as they can be better distributed through central processes. That may also explain the lack of legal capacity to donate them to a particular person on death.

8. Incident of Absence of Term

The incident of absence of term is related to transmissibility as both affect the duration of ownership. Absence of term refers to the indeterminate length of one’s ownership rights. This differs from other legal situations, such as a lease which has a definite and determined time limit placed upon it (as has patent law). Ownership, thus, would continue indefinitely unless terminated by the owner, but for the fact that at some point the owner will die. It is for this reason that an indeterminate interest must be linked to a power of transmissibility to deal with the fate of the object upon the owner’s death.[65] An interest for life differs slightly, as it is determinate, ceasing at death.

It would be possible to allow for absence of term in relation to human tissue. This would mean that an individual with rights over the tissue would hold those rights indefinitely. In itself, there is no absurdity in this as for the most part individuals using tissue would wish to be able to do so as long as they chose. However, there may be problems with determining who is the owner with an indefinite interest. Consider a situation where a woman transfers her tissue sample to a hospital when she allows them to take a biopsy of a suspected tumour. The hospital now has a right to possess the sample to test it, but of the two of them who will have an indefinite interest? It may be that both have indefinite but specific interests, for instance the hospital may possess the sample indefinitely but the woman will always hold the power to manage the tissue. These complexities do not preclude the incident of absence of term existing in relation to tissue, but they do require consideration.

At present, neither the Human Tissue Acts nor the few common law cases deal with absence of term in relation to tissue. As the legislation works on a consent model, and defines only the uses to which tissue may be put, it does not make any determination on what happens to that tissue once the specified use has been made. The legislation does not, however, contain any suggestion that once it has been used the right to use it ceases, or that possessory rights cease either. In the absence of such provision, it seems that most researchers, hospitals and tissue banks have simply continued to hold tissue indefinitely. For example, newborn screening cards are created initially for screening purposes, but are held indefinitely after that and there is no legal requirement that prevents this.

In some instances, however, there is a definite term of ownership. Pathology samples collected for the purpose of testing are to be held for up to 50 years for quality assurance and future testing purposes. Once that time has expired, they must be destroyed. Despite this particular case, in most situations no limits have been put on how long tissue may be retained. For the most part ownership rights end when there is a specified legal direction that they must be destroyed, but in the majority of instances such as forensics, tissue banks and the like, there is no legal direction either way. Ethical guidelines also do not require use and possession to cease—often it is only required that a piece of tissue be de-identified. At that point, most uses are permitted indefinitely.

9. Prohibition against Harmful Use

This duty, imposed on the person who holds property rights in an object, is subject to debate. Some commentators, such as Jeremy Waldron[66] and Alan Carter,[67] have argued that it does not form one of the standard incidents of property at all. If it exists, this prohibition acts to place a duty on owners not to put their property to harmful uses. What constitutes harm and how far this prohibition extends is arguable also, but is best viewed in a very broad sense including invasions of privacy and physical harm.

It would certainly be possible to limit the uses to which tissue is put because they may cause harm. There are many harmful ways tissue can be used, such as unwanted testing for a genetic condition which will invade the privacy of the person from whom it was taken; or planting a sample at a crime scene to falsely incriminate someone; or injecting someone with blood carrying a virus without their consent. Prohibitions on these actions would, in part, equate to this incident of property, if it were one.

Prohibitions on harmful use of tissue are already in place. If harm is conceived as doing something with tissue that would offend or distress the person from whom it was taken, then the NHMRC National Statement is a good example of such prohibitions, despite the fact that it does not have the same force as legislative measures.[68] It provides that researchers should not use tissue except in accordance with the wishes of the person from whom it was taken. Generally, however, it is more likely that legal prohibitions are directed at the harm done, not at who owns the tissue. Hence, injecting someone with infected blood without his or her consent would be treated as a battery under common law, and the person who injected the blood, regardless of whether he or she “owned” the blood, would be criminally liable.[69]

10. Liability to Execution

Liability to execution is a liability on the owner, with a correlative right vesting in others against the owner, allowing the object to be taken from the owner in lieu of payment of debts. Honoré argues that such a liability is an incident of property as without it the growth of credit would be hampered and property rights would be a means for the owner to defraud creditors.[70]

Once human tissue has been excised from the body, it is separate from the person. This paper deals only with tissue already excised, so liability to execution in this context would not mean forcing a person to remove part of his or her body, such as a kidney. Instead, it would mean allowing creditors to take sections of tissue already removed in payment of a debt. It is easy to imagine this being possible in the case of a valuable cell line, made from a sample taken from someone. A company which has developed the cell line makes profits from its exclusive control of the cell line and its power to grant others access to sections of it. Rights to manage and derive income from this cell line are lucrative, and there is no reason why it would not be possible to transfer them to another company, with the value of the line being taken in lieu of a debt.[71] At present, however, tissue does not appear to be liable to such execution and there are no specific laws in relation to expropriation of tissues to pay debts.

11. Residuary Character

This area of property rights covers rules governing the reversion of lapsed rights. In accordance with the rules of a particular legal system, when an owner’s property rights in an object lapse, corresponding rights will vest in another.[72] Honoré uses the example of an easement, where for instance the easement holder has a right to exclude the owner, but upon the lapse of this right the owner gains the right to exclude the previous easement holder. These rights are corresponding but not identical.

Rights that lapse may not always pass to another in a corresponding form. It is possible for rights to lapse and vest in no-one, the object becoming ownerless or res derelicta. Conversely, the right may lapse and vest in the state. Generally, however, rights lapse and it is the individual who has a residuary right in the object who will regain these rights. This is often the owner and this may occur, say, upon the cessation of an easement or bailment. In other situations, such as a sub-lease, it will be the lessee who regains the rights which correspond with those of the sub-lessee when the sub-lease terminates, rather than the owner. That is, the rights will return to the previous and still legitimate right holder, namely in this case the lessee who is still acting within some agreement with the owner allowing him or her to exercise these particular rights.

Whether it would be possible for human tissue to have residuary character is perhaps not too difficult a question to answer. If rights in that tissue lapse, and the material is still identified, it will always be possible to find at least one party who may have some claim to the rights as residuary—the person from whom it was first taken (or his or her family, if deceased). It will almost always contain his or her DNA, and hence have an intrinsic link to him or her on which to base residuary status. Where the sample is no longer identified, the research and forensic value of tissue may mean that the state has a good claim as residuary, as it can put the tissue to some use that is of general benefit to the community.

For the present, this incident does not seem to have arisen in the context of biological materials. However, it could be argued in relation to attempts by Aboriginal communities to have the remains of their ancestors returned by the museums currently holding them,[73] that the remains have residuary character. Their claim to the remains is based on their place as descendants of the people whose remains are held, and if the residuary nature of tissue is linked to its place as part of a person, then those people with the closest link as relations may be the proper residuaries.

At present, there do not appear to be any legal provisions in relation to tissue that deem it to have residuary character. On the contrary, in some cases where there is no apparent residuary to determine what will be done with tissue, then without his or her consent, nothing can be done with the tissue. The Human Tissue Acts provide that the hospital holding a body may only use its organs for transplantation with the consent of the deceased or of a next of kin. To some extent, the next of kin could be regarded as a form of residuary, but beyond this, it appears none is identified by the legislation and hence nothing can be done with the body.

However, where tissue is de-identified, ethical guidelines take a different view, and tissue may then be used in research without consent. It appears that the ethical guidelines ignore the possibility of residuary rights, or regard them as extinguished if tissue is de-identified. For the most part, though, it does not appear that tissue has been treated by the law as though it has any character, residuary or otherwise.

BRINGING THE INCIDENTS TOGETHER: TWO POSSIBLE SCENARIOS

Although the preceding discussion has dealt with each incident separately, it is rare that only one incident will be held in relation to an object. Far more commonly, a combination of a number of incidents will vest in one or more people in relation to the object. This section considers two possible instances where a range of incidents might be held and demonstrates how tissue dealt with in this way does fit within the common law notion of property.

Example 1: Research use of heart valves

Body tissue removed during surgery is often used in research. In this example, a surgically removed diseased heart valve is donated by the patient to the hospital for research in accordance with the Human Tissue Acts consent provisions. The researcher takes possession of the tissue once donated, uses it in research and determines how that tissue will be used in the research. If we cast this example in terms of property incidents, what kinds of incidents might vest in the researcher? Clearly, the right to use, as the researcher will be working on the tissue. The researcher will also act as though he or she has a right to possess the tissue to undertake this work, and, we might also say a management right, as the researcher is legally allowed to direct what happens to the tissue, albeit constrained by the terms of the consent. From this perspective, it is clear that the legislation allows the researcher to act in a manner very similar to that which could be provided by vesting in him or her these proprietary rights in relation to the tissue.

There are some distinctions to be made, however, between the legislative approach and the property approach that are salient to the “should” question—should we deal with tissue in this way. The legislative approach lays down clear limits on what may be done with the tissue—it may only be used for the purpose for which consent has been given and in specific contexts. Arguably, on the property approach, once the rights have vested in the researcher, these limitations would need to be established in a different manner. This could be achieved by the donor retaining some management rights, or the rights being limited by time and purpose.

Additionally, if only the rights in accord with the legislative approach vest in the property approach, some concerns arise. Who has the right to determine what may be done with the tissue in the future? Can it be stored? Can it be transferred and if so, what rights does the recipient gain? Is the donor the original residuary and does he retain any rights in relation to the tissue? I argue that although these are challenges for fitting tissue with the concept of property, they are not fatal—the tissue can be dealt with like property and achieve the same approach as the legislation, albeit with some difficulties. Rather, applying the property approach highlights limitations of the current, legislative approach, as the legislation does not deal with these issues. They are dealt with through some ethical guidelines, but these leave both the individual and any future possessors with few if any clear rights. This suggests that tissue in this case could be regulated via property law, but just as the legislative approach has flaws, the property approach would have the same flaws. They would need to be addressed just as those in the legislative framework should be.

Example 2: Orlan’s reliquary

In this second example, a more unusual use of tissue is given, although the example is taken from actual event. Orlan is an artist famed for her work in undergoing plastic surgery as a form of conceptual performance art. Following her cosmetic operations, she retains portions of the excised skin. From these, she creates what she terms “reliquaries”, skin and gauze containing images of her face, which are subsequently sold as artworks.[74]

Under the Human Tissue Acts, this artistic enterprise would be unlawful, as the sale of tissue is prohibited.[75] Two exceptions apply—tissue may be sold with Ministerial approval;[76] or where it has been processed and is sold for therapeutic, medical or scientific purposes in accordance with the directions of a medical practitioner.[77] Yet, there are good social policy reasons why this consensual use and sale of her own tissue should be lawful. Artistic expression is culturally valuable, as is freedom of expression, particularly in this case where there is no clear harm to others resulting from the use and sale of the tissue.

The tissue used and traded in this context could fit within a property model, however. In this scenario, Orlan’s dealings with the tissue could be conceived of as an exercise of the rights to possession, use, management, transfer and income of the tissue. Current restrictions on these rights in the context of sale could be applied, including to meet public health concerns. In this scenario, Orlan is trading an artwork that simply happens to be human tissue—setting aside ethical issues that might arise, this kind of instance is again one where a combination of property incidents could workably be applied to tissue.

While the example is unusual, the principle remains the same for other forms of tissue trade. For example, renewable tissue such as blood could be sold in this way, with individuals holding rights to the income of their tissue. This right could be restricted in the same way as other rights to sell (and constraints on what may be sold, where and of what quality would also apply). The point here is that other things, such as selling blood for transfusion or tissue for commercial research and product development, do not differ in their fundamentals from other property transactions and could be conceived of as such. They do have similar features to other items of property that are sold and, where it is acceptable to the individual from whom they are taken and they are fit for sale in the sense that they are not dangerous and their quality is sufficient, then as a general principle they can be treated in the same way as other properties.

There are, of course, other issues involved, such as concerns about commodification of persons and their parts; about the effects on the cost of treatment and therapeutic productions; and about the effects on the community of allowing people to trade their own bodies. These, however, are separate issues to the one under consideration here. What this example does, as the previous example also does, is demonstrate that we can successfully conceive of transactions in tissue in terms of property incidents. Tissue, in these contexts at least, does fit within the common law concept of property.

CONCLUSION

Common law legal systems have long regarded human tissue as a substance somehow deserving rarefied, special status. There is good reason for this, because tissue is unique and does hold special significance within Western societies. Genetic science has also allowed us to uncover intimate information about individuals from their tissue, creating an ongoing link (and attendant privacy issues) that differentiate tissue from other objects. However, as tissue has come to take on other statuses—as commercial resource, as donation, as research subject, as evidence, as art—a need to recognise this legally has developed.

Property law has gradually begun to emerge as a possible legal mechanism for dealing with tissue. This paper has attempted to demonstrate that there are rather fewer practical legal problems with using property law to regulate human tissue than has perhaps been generally considered. The analysis of the concept of property has demonstrated that human tissue is aptly suited to having property status, and that the various property rights, such as rights to use, to possess, to manage and to the income can almost all be applied to tissue without legal absurdity.

More generally, this analysis has shown that at the conceptual level, there are few legal difficulties with viewing human tissue as property. Finally, it has also been demonstrated that in many cases rights akin to these property rights are effectively already exercised over tissue, even if they are not called “property rights”. People, and the law, do already deal with tissue like they deal with property in many instances, and hence conceptually it is certainly possible to deem tissue property.

There may be other barriers to admitting human tissue as property (including legal barriers). Applying property law may produce adverse legal results, or work in opposition to some of the social goals we seek to achieve through our use of tissue. Hence, there may be a need to adapt the particular rights that may be exercised over human tissue to promote social goals and prevent unjust legal results. However, this paper demonstrates that the initial question of whether tissue could fit within the classes of things our legal system is capable of treating as property is answered in the affirmative. The further investigation of other aspects of applying property law to tissue, such as more specific legal concerns as well as the moral, social or practical reasons why human tissue should not be subject to property rights, should be considered in light of this affirmative answer. In doing so, it should be borne in mind that this affirmative answer shows that it would be possible to adapt property law concepts and rules to cover tissue, just as property law has previously been adapted to other novel forms of property, like intellectual property.

* St AnneR[1]s College, University of Oxford.

1 L B Andrews, “My Body, My Property” (1986) 16 Hastings Center Report 28, 29.

[2] The major cases dealing with property law and human tissue in Australia and the United Kingdom are Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301; (1996) 4 All ER 474; Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741 and Roche v Douglas as Administrator of the Estate of Edward Rowan (dec’d) (2000) WASC 146.

[3] Human Tissue Act 1985 (Tas); Human Tissue Act 1982 (Vic); Human Tissue Act 1983 (NSW); Transplantation and Anatomy Act 1983 (SA); Transplantation and Anatomy Act 1979 (Qld); Human Tissue and Transplantation Act 1982 (WA); Transplantation and Anatomy Act 1978 (ACT) and Human Tissue Transplant Act 1979 (NT).

[4] See, eg, National Health and Medical Research Council, National Statement on Ethical Conduct in Research Involving Humans, NHMRC, Canberra, 1999.

[5] See Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741; Roche v Douglas as Administrator of the Estate of Edward Rowan (dec’d) (2000) WASC 146.

[6] R v Kelly but compare R v Herbert (1961) 25 J CR L 163 and R v Rothery (1976) Crim LR 691, which contain no mention of either the rule or the exception.

[7] Roche v Douglas (2000) WASC 146.

[8] See Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301; (1996) 4 All ER 474 and compare R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.

[9] Human Tissue Act 1985 (Tas) s 27; Human Tissue Act 1982 (Vic) ss 38, 39; Human Tissue Act 1983 (NSW) s 32; Transplantation and Anatomy Act 1983 (SA) s 35(1)–(6); Transplantation and Anatomy Act 1979 (Qld) s 35(1)–(6); Human Tissue and Transplantation Act 1982 (WA) s 29; Transplantation and Anatomy Act 1978 (ACT) s 44 and Human Tissue Transplant Act 1979 (NT) s 24.

[10] Australian Broadcasting Commission, “Aboriginal Remains to be Returned from the UK” ABC Radio News, 7 June 2001.

[11] P Fray and A Moses, “Top Museums Unite to Fight Aboriginal Claims”, Sydney Morning Herald, 11 December 2002, <www.smh.com.au/articles/2002/12/10/1039379839080.html> at 1 September 2003. Among the signatories were the Guggenheim, the Hermitage, the Prado, the New York Metropolitan and the Louvre. Some British museums have, however, agreed to return remains for burial, including the Hunterian Museum of the Royal College of Surgeons, the Pitt-Rivers Museum in Oxford, the Peterborough City Museum, Bradford University and the Kelvingrove Museum in Glasgow (P Huck, “Bringing Home the Dead”, Australian Financial Review (Sydney), 24 October 1991, 37. In Australia, museums have been required to return the collected remains of Aborigines (D G Jones, Speaking for the Dead: Cadavers in Biology and Medicine (2000) 120) and undertakings have also been made by the Australian government to secure the return of some remains (L Tingle, “PM Gives Word on Aboriginal Remains”, The Age (Melbourne), 22 June 1997, 1). All Australian museums have agreed to refrain from displaying any recent skeletal remains (R Glover and D Langsam, “Day of Reckoning for Darwin’s Bodysnatchers”, Sydney Morning Herald, 3 March 1990, 79, 80).

[12] See variously L Andrews and D Nelkin, Body Bazaar: The Market for Human Tissue in the Biotechnology Age (2001); Nuffield Council on Bioethics, Human Tissue: Ethical and Legal Issues (1995); L Skene, “Arguments against People Legally ‘Owning’ Their Own Bodies, Body Parts and Tissue” (2002) 2 Macquarie Law Journal 163; R Magnusson, “The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions” [1992] MelbULawRw 5; (1992) 18 Melbourne University Law Review 601.

[13] L B Andrews, “My Body, My Property” (1986) 16 Hastings Center Report 28; T H Murray, “On the Human Body as Property: The Meaning of Embodiment, Markets, and the Meaning of Strangers” (1987) 20 Journal of Law Reform 1055; J W Harris, “Who Owns My Body?” (1996) 161 Oxford Journal of Legal Studies 55; D Mortimer, “Proprietary Rights in Body Parts: The Relevance of Moore’s Case in Australia” [1993] MonashULawRw 10; (1993) 19 Monash University Law Review 217; R Magnusson, “Proprietary Rights in Tissue” in N Palmer and E McKendrick (eds), Interests in Goods (2nd ed, 1998) 25; R Atherton, “Who Owns Your Body?” (2003) 77 Australian Law Journal 178; L Skene, “Arguments against People Legally ‘Owning’ their Own Bodies, Body Parts and Tissue” (2002) 2 Macquarie Law Journal 163; J Harris and C Erin, “An Ethically Defensible Market in Organs: A Single Buyer Like the NHS is an Answer” (2002) 325 British Medical Journal 114.

[14] Haynes’ case [1572] EngR 174; (1614) 77 ER 1389; R v Lynn [1788] EngR 257; (1788) 2 TR 733; R v Price (1884) 12 QB 247; Williams v Williams (1882) 20 ChD 659.

[15] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

[16] Ibid.

[17] Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301; (1996) 4 All ER 474.

[18] R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.

[19] Some authors have asserted that the debate as to whether human biological materials should be deemed property is a debate about the wrong issue altogether (see, eg, A George, “Property in the Human Body and its Parts: Reflections on Self-Determination in Liberal Society” (2001) European University Institute Working Paper No. 2001/8).

[20] The author would like to acknowledge the kind help of Professors Tony Honoré and James Harris with regard to this section.

[21] See, eg, R Hardiman, “Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue” (1986) 34 University of California Los Angeles Law Review 207, 214.

[22] See S Munzer, A Theory of Property (1990) 16–17 on the occasional need to use also the simple conception of “property as things”. It is, Munzer argues, “perfectly sound to think of property both as things (the popular conception) and as relations among persons or other entities with respect to things (the sophisticated conception)—provided that the context makes clear which conception is meant”.

[23] It bears noting that simply listing the rights that make up the common law concept of property does not wholly capture the concept of “ownership”. Jeremy Waldron suggests that defining an owner as someone who may only use an object in accordance with their rights and the law is “vacuous” because it defines ownership only by reference to external criteria to explain ownership itself (J Waldron, “What is Private Property?” (1985) 5 Oxford Journal of Legal Studies 313, 316).

[24] R Hardiman, “Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue” (1986) 34 University of California Los Angeles Law Review 207, 215.

[25] Some legal scholars reject the incident of prohibition of harmful use (for example, Jeremy Waldron).

[26] See, eg, J E Penner, “The ‘Bundle of Rights’ Picture of Property”, (1996) 43 University of California Los Angeles Law Review 711.

[27] Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 64. This notion has been criticised by Stephen Munzer, who has argued that in fact the elements as expounded by Hohfeld are reducible to two elements only: “power” and “duty”, where these two elements are conceived in a slightly different manner: see Munzer, A Theory of Property, 17–22.

[28] Given that a duty is a legal obligation to do or not do something, a “right” in this context is more akin to a claim that the something in question be done or not done. A duty forms the correlative of a right as a failure to fulfil that duty will equate to a violation of the right. In the interests of clarity these rights will be referred to as “claim-rights”. The opposite of a claim-right is what Hohfeld termed a “no-right”, or the lack of any claim. W Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 26 Yale Law Journal 16, 33.

[29] A privilege allows the holder to choose not to do something. Privileges can therefore also be seen as liberties or freedoms. Where one person has the privilege to do something, another will correlatively have “no right” to prevent that person from doing so. The opposite of a privilege or freedom is a duty or obligation to do something and that one has no choice to refuse.

[30] A legal “power” is the ability to do something, in effect to alter one’s legal position (or that of another). For instance, the ability to donate an object equates to a legal power to transfer title to another, altering both one’s own legal relationships and those of the donee. This donee’s legal relations have been altered by the effect of the power, and the correlative therefore of a power is a liability or susceptibility to having one’s legal relations changed. It follows then that the opposite of a power will be a disability, that is, the inability to alter legal relations. See further Hohfeld, “Some Fundamental Legal Conceptions”, 44–54.

[31] An immunity is the absence of susceptibility to having one’s legal relations changed by another. This does not however place a duty on others to avoid altering those relations, rather others are under a correlative disability as they may not alter the legal relations of the person holding the immunity. The opposite of an immunity is a liability, or a susceptibility to having one’s legal relations changed.

[32] E Seeney, “Note: Moore 10 Years Later—Still Trying to Fill the Gap: Creating a Personal Property Right in Genetic Material”, (1998) 32 New England Law Review 1131, n 177. See also L C Becker, Property Rights: Philosophic Foundations (1977) 21.

[33] A M Honoré, “Ownership” in A Guest, (ed) Oxford Essays in Jurisprudence (1961) 113ff. For discussion of this list in other works see, eg, Becker, Property Rights, 18–20; Waldron, “What is Private Property?”. See also S Hepburn, Principles of Property Law (1998) 2–3.

[34] F H Lawson and B Rudden, The Law of Property, (2nd ed, 1982) 9.

[35] As stated in Honoré, “Ownership”, 113–128.

[36] In some instances it could also be regarded as a privilege. For example, a transplant surgeon may possess an organ to place into the body of her patient, but it is unlikely that the law would accord the same right to someone who was not qualified to do so.

[37] Yet if this right to possession was merely a right to have present possession protected, possession itself would not be well protected. Instead, it is necessary to add another dimension to the right to possess—a claim-right to be put in control. The need for this is illustrated simply by considering what would happen if only present possession were protected. If A has possession of an object, and that possession is taken over by B, A no longer has present possession. If the right to possession was protected only by prohibiting others from taking possession, once dispossessed A would have no right to regain possession of what was hers. Protection of that original right to possess is properly upheld against all persons only where it remains in effect after unlawful dispossession, giving A the ability to have her possession of the object restored. That is, A is no longer in exclusive control of the object, but she has not lost her right to be in control. She has the right to have that exclusive control still and hence may claim against B that the object be handed back. Honoré has expressed this as a distinction between “having” an object and “having a right to” an object, or the distinction between “rules allocating things to people as opposed to rules merely forbidding forcible taking”. See Honoré, “Ownership”, 115.

[38] Ibid, 113.

[39] It is in this sense, as discussed above, that while each property interest is separable in theory, in practice in many cases such a separation would be unworkable (although this will be dependent on the type of object in which rights are held and how those rights are divided).

[40] For example, government officials and police often have the right to enter onto land owned by an individual in certain exceptional circumstances laid down by the law.

[41] See, eg, Department of Health, Department of Education and Employment and the Home Office, Report of a Census of Organs and Tissues Retained by Pathology Services in England: Conducted in 2000 by the Chief Medical Officer (2001); Crown Solicitor for Western Australia and Commissioner for Health for Western Australia, Final Report: Removal and Retention of Organs and Tissue Following Post-mortem Examinations (2001); South Australia Solicitor-General, Report into the Retention of Body Parts after Post-Mortems (2001).

[42] R v Rothery (1976) Crim LR 691.

[43] R v Welsh (1974) RTR 478.

[44] R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.

[45] Quinn created Self, a model of his head, using his own, congealed blood as a work of art.

[46] See, eg, Crimes Act 1914 (Cth), Pt 1D; Crimes (Forensic Procedures) Act 2000 (NSW), Pts 3–8.

[47] On situations where supply of blood samples is required by the law, see generally Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours, ch 39.

[48] Some legal writers have held that the power to alienate comes within the aggregate of powers that make up the management power. See, eg, Lawson and Rudden, The Law of Property, 8–9. However, following the Honoré model, this power will be examined within the context of rights to the capital of an object.

[49] See, eg, NSW Health Department, Test to Protect Your Baby (2000); South Australian Neonatal Screening Centre, Screening Tests for Your New Baby (2002); Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in Australia (2003) ALRC 96, 19.3.

[50] See, eg, Victoria Police and Genetics Health Services Victoria, Memorandum of Understanding, 23 January 2003; New South Wales Commissioner of Police and New South Wales Health Department, Memorandum of Understanding, 17 April 2002.

[51] Honoré points out that under English tax law, rent-free use or occupation of a house is regarded as a form of income. See Honoré, “Ownership”, 117.

[52] John Moore v The Regents of the University of California (1990) 51 Cal. 3d 120, 793 P.2d 479, 271 Cal. Rptr. 146.

[53] Honoré said of this incident “Most people do not wilfully destroy permanent assets; hence the power of alienation is the more important aspect of the owner’s right to the capital of the thing owned”. See Ibid, 107.

[54] See further on the privilege to waste. See E J McCaffrey, “Must We Have the Right to Waste?” University of Southern California Olin Research Paper No. 00–16.

[55] Human Tissue Act 1985 (Tas) s 27; Human Tissue Act 1982 (Vic) ss 38, 39; Human Tissue Act 1983 (NSW) s 32; Transplantation and Anatomy Act 1983 (SA) s 35; Transplantation and Anatomy Act 1979 (Qld) s 35; Human Tissue and Transplantation Act 1982 (WA) s 29; Transplantation and Anatomy Act 1978 (ACT) s 44 and Human Tissue Transplant Act 1979 (NT) s 24.

[56] See, eg, Human Tissue Act 1983 (NSW) s 32(2). There are no examples of the exception being interpreted more broadly than this.

[57] Honoré, “Ownership”, 119.

[58] The distress people experienced following the revelations of organ retention appears to have been considerable and widespread (Interview with Mary Dorcan, Retained Organs Office, Oxford Radcliffe Hospital, (Personal interview, Oxford Radcliffe Hospital, 25 September 2001)). This is also demonstrated in government inquiries on the organ retention. See, eg, Witness statement of Paul Bradley, WIT02290001, Bristol Royal Infirmary Inquiry, <www.bristol-inquiry.org.uk/evidence/wit/WitSMent/witPBradley.htm> at 25 October 2005.

[59] (2000) WASC 146.

[60] For example, the Constitution of Australia gives the Federal Government power for “[t]he acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”. See Commonwealth of Australia Constitution Act 1900 (UK) s 51(xxxi).

[61] R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.

[62] Crimes Act 1914 (Cth) ss 3ZK, 23WA(5). Destruction of “forensic material” under the Act merely requires destroying any identifiers. See also R v Rothery (1976) RTR 550; R v Welsh (1974) RTR 478.

[63] The incident of transmissibility differs from the right to alienate found in the right to the capital as it deals specifically with transmission upon death.

[64] General authority for this principle is the English case of Williams v Williams (1882) 20 ChD 659. See further Griggs and Mackie, “Burial Rights”.

[65] Although there would still be some value in an indeterminate interest as no fixed date would be set for its end. See Honoré, “Ownership”, 122.

[66] See, eg, Waldron, “What is Private Property?” 320–321.

[67] A Carter, Philosophical Foundations of Property Rights (1989) 5.

[68] See further on the legal force or otherwise of the National Health and Medical Research Council, National Statement on Ethical Conduct in Research Involving Humans and other ethical guidelines, I Goold, “Tissue Donation: When Does Ethical Guidance Become Legal Enforceability?” (2000) 3 Centre for Law and Genetics Occasional Paper Series 92.

[69] A battery is any intended application of force, regardless of how slight, to the person of another without consent. On the common law definition of a battery see Jones v Sherwood (1942) 1 KB 127. Under common law, bodily Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] UKHL 1; (1985) 2 WLR 480.

[70] Honoré, “Ownership”, 123 and see 123–124 for discussion of Honoré’s speculation on whether any other limitations on ownership (such as a liability to tax or expropriability by the State) could be regarded as standard incidents of property.

[71] Generally, however, tissue on its own has not been regarded as valuable. There are some exceptions, for example when the tissue is useful, as in the case of hair used for wigs. For the most part, though, it has been seen as valuable once worked on (as in a cell line). Therefore, it is unlikely that the law has had to deal with this aspect of dealings with tissue, and that anyone would have sought access to tissue in lieu of a debt. This is particularly the case as tissue usually does not have a clear market value, as for the most part it has not been treated as a commodity like other products—that is, there is no defined market value for my finger if I cut it off to pay a debt, even though in some cases tissue is sold once processed.

[72] Meaning rights which are similar, but cannot be precisely the same rights as they are exercised by another person.

[73] For more information on the retention of Aboriginal remains in museums around the world, and attempts to retrieve them, see, eg, various reports contained at Working Group on Human Remains Report, Department for Culture, Media and Sport (UK), The Working Group on Human Remains Report <www.culture.gov.uk/cultural_property/hr_uk_institutions/default.htm> accessed at 20 April 2005.

[74] L Andrews and D Nelkin, Body Bazaar: The Market for Human Tissue in the Biotechnology Age (2001) 136.

[75] Human Tissue Act 1985 (Tas) s 27; Human Tissue Act 1982 (Vic) ss 38, 39; Human Tissue Act 1983 (NSW) s 32; Transplantation and Anatomy Act 1983 (SA) s 35(1)–(6); Transplantation and Anatomy Act 1979 (Qld) s 35(1)–(6); Human Tissue and Transplantation Act 1982 (WA) s 29; Transplantation and Anatomy Act 1978 (ACT) s 44 and Human Tissue Transplant Act 1979 (NT) s 24.

[76] Human Tissue Act 1985 (Tas) s 27(4); Human Tissue Act 1983 (NSW) s 32(4); Transplantation and Anatomy Act 1979 (Qld) s 35(6); Transplantation and Anatomy Act 1983 (SA) s 35(6); Human Tissue Act 1982 (Vic) s 39(2); Transplantation and Anatomy Act 1978 (ACT) s 44(4); Human Tissue Transplant Act 1979 (NT) s 24(3).

[77] Human Tissue Act 1985 (Tas) s 27(2); Human Tissue Act 1983 (NSW) s 32(2); Transplantation and Anatomy Act 1979 (Qld) s 35(3); Transplantation and Anatomy Act 1983 (SA) s 35(3); Human Tissue and Transplantation Act 1982 (WA) s 29(4); Transplantation and Anatomy Act 1978 (ACT) s 44(2); Human Tissue Transplant Act 1979 (NT) s 24(4). In Victoria, the same provisions apply but Ministerial approval is also required. See Human Tissue Act 1982 (Vic) ss 38(2), 39(2).