Author: Panchami Khaund, IV Year, B.A, LL.B(Hons) from National Law University and Judicial Academy, Assam.
We all are familiar with the word “Property” since we use it on a daily basis to specify many things in different contexts. However, property has been defined in a different aspect where we examine the relation between property and the human body. The law prohibits any external coercion or harm caused by an individual on anyone else’s body and the person can rightfully defend their own body. However, a very pertinent issue of debate has been the existence of a property right of an individual over their own bodies. Although, there have been very many instances where different courts have given varied judgements on this matter, the conclusion of the matter has been rather vague. Even though a person might possess some sort of property rights on their own body, there have always been limitations to it since the law prohibits few instances like the buying and selling of body parts since then the human body is subjected to mere objects and might be misused in the black-marketing arena. Hence, there are varied views on the concerned question.
Keywords: - Property, body, slavery, surrogacy.
The very word “Property” denotes the possession of a particular thing, like land, material things, etc. It refers to any living or non-living thing which can be owned. The question whether humans have a property right on their own bodies is somewhat interpretative in nature and does not have a definite answer. It is obvious to claim that we do not possess a right over someone else’s body as there are various rights for the protection of one’s body. In Tort and Criminal law, it clearly states that no one can cause any harm to someone else’s body and has to pay for the varied consequences if they do so. Though our non-possession over someone else’s body is clearly specified, whether or not we have a property right in our own body is still debatable.
The common law however, does not grant any specific laws to state that humans have a property right on their bodies. There have been many judicial pronouncements where it has been stated that our body is our property, and a few others also specify that human beings do not possess their bodies as a property.
While many instances like prostitution, surrogacy, organ donation, demonstrates the usage of the bodies of humans as their property. However, there are other instances where the possession of a body is limited. In cases of organ transplantation, slavery, bonded labour, suicides, it is specified that our control over our body is limited as these activities are prohibited by law. Hence, the very contention here is to whether humans have property rights on their body and if at all, then if it is limited or absolute.
Although most of the liberal societies grant liberty and freedom to the people on most matters, there are still rules and restrictions on the buying and selling of human body parts in different countries. Though liberalism preaches individual liberty but a person is not allowed to sell his/her body parts. This is due to avoid the black market for the buying and selling of human body parts which transforms human being into mere objects. It is prohibited because some people might also be forced to sell their body parts and this might lead to commodification. Federal laws like The National Organ Transplant Act, forbids the buying and selling of organs for transplantation. However, the donation of body parts is allowed when a person donates his/her body part voluntarily and hence it could lead to the survival of numerous people who are in desperate need of the said organs.
The body as our Property- the differing views
Although the normal no property rule is believed which states that human beings do not have property rights in their body, Locke was of another view. John Locke has been a propounder of the natural rights theory and has put forward his view in The Two Treatises of Government. He emphasised on the individual rights of the people and stated that there should not be any government intrusion in these rights. He believed that people must preserve themselves and possess private property rights for their betterment. He stated that when people mix their labour with something that is in their natural form and add value to it and is not previously owned by someone else, and then they own that thing legitimately. For instance, if there is a barren land not having an owner and a person adds his/her labour to it, then he becomes the owner of the land.
Property rights in a dead body
Throughout the 19th and 20th century there was no recognition of a dead body as a property in the common law. The corpse was said to be a jilted object and was not owned. The dead body only had a burial right according to their customary law by their relative or nearest ones.
The common law does not specify much about the rights of a dead man, but the only right mentioned is the right to have a proper burial by a close one who can take certain authoritative decisions regarding the burial of the corpse. Pseudo- Property rights are granted in the laws of Canada where the corpse has significant burial rights. Similarly, in the United States a quasi-property right was established for the dead, where the close relatives of the corpse were compensated with damages for the trauma, they underwent due to the loss of the dead person.
The landmark case of Doodeward v Spence, the facts of case state that two stillborn Siamese twins were being preserved by a doctor for a long period of time, but, they were sold to Doodeward after the doctor’s death. However, Spence, the Police Inspector seized the bodies from him. Doodeward appealed to the Court that it was his property which was being confiscated and demanded its return. The Court in this case had followed the Lockean interpretation and pronounced that since there was a mixture of labour and skill in transforming and preserving the corpse than its usual state, hence, the human body and the parts of a human body can be termed as property.
Yet in another case of R.v Kelly and R.v Lindsay, it was stated that Kelly and Lindsay got hold of 35 body parts from the Royal College of Surgeons and the very contention was whether they were charged of theft under the Theft Act 1968. The Court observed that body parts are considered to be property only when they are modified by some sort of skill or labour and in the present case the college had not added any labour to the bodies or transformed them to a different state. Since the Common Law also does not consider human bodies as a property and the absence of any alteration in the body parts was proven, the Court held that there was no property right of the college on the body parts and Kelly and Lindsay had not committed theft. However, body parts can be considered as property when there is an involvement of a skillset in its very modification. There were, however, opposition to Locke’s theory, where Kant specified that human beings can never be a property because in order to be so, they need to be a thing first. But since they are not a thing, they cannot be a property.
Property in body parts which are detachable and restorable
There is a significant differentiation between the various body parts of a human being. Whereas kidney, heart, corneas, lungs are vital organs of the body and cannot be replaced. The body cannot function in the absence of these organs.
However, there are body parts like the bone marrow, hair, blood, urine, sperms, etc are different because these are detachable and regenerative. Even if these body parts are extracted from the human body, it can still function properly without posing any difficulty in the survival of the body. However, these body parts regenerate and continue to form in the human body.
The human body cannot function without organs like kidney and corneas because without a kidney the body will stop working and in the absence of corneas the body will survive but the eyes will lose its visibility, which poses a great threat to the body. In the landmark case of Moore v. Regents of the University of California, the facts stated that the surgeon had made pharmaceutical products for commercially viable purposes by extracting the cells of the plaintiff involuntarily. The plaintiff had claimed his property rights on his body cells and contented that a breach of this property right had been committed by the medical authorities for using his cells for commercial gains.
It was however, held by the Supreme Court of California that the surgeon who had developed those cells would have a proprietary interest in them and rejected the right of ownership of Moore’s cells by himself as they were afraid that it would lead to the hindrance in the health care sector progression. In the first judgment, it was previously held that Moore has full right to “use, enjoy, and dispose of his spleen” and had the right of property on his body. It was held in Yearworth v North Bristol NHS Trust, it was stated that a few body parts or particles like urine, blood, hair can be termed as property stolen from the possessor but they need to specify in the case whether the particles were considered to be property or the containers. Though some American, Canadian Courts have declared certain body parts or particles as “property”, certain other instances also specify that human body cannot be termed as property. However, the common law on this matter, has still not demonstrated an elaborate stance.
However, in surrogacy, a woman treats her body like a property as she rents her womb for the reproduction of someone else’s baby. By doing so she earns a living and hence uses her body or body part for earning money. Though in surrogacy the body is used as a property, it is still widely accepted and legalised in different countries as it has become normality in today’s liberal societies. Although a new concept, surrogacy is widely prevalent even in the Indian society. Since the human cells pose great value and this increasing trend has led to the demand of the cells by the biotechnology firms. This raises a concern that whether these body parts should be considered as “property”. Property rights in the human body are a matter of concern in various other practices like posthumous reproduction.
Posthumous reproduction is the practice where reproduction is performed by the gametes of the deceased parents. It is when couples store their embryo for future reproduction, after the death of either of the parents or even both. The gametes are stored and then used for reproduction. It is generally done by the couples who want to have their own children despite the death of the other partner. In the U.K case of Human Fertilisation and Embryology Authority, ex parte Blood a couple Diane and Stephen Blood were married for four years and wanted to have their own children. However, Stephen died of meningitis on 2nd March 1995. Diane Blood wanted to have children with her husband and so she requested to take two samples of her husband’s sperms while he was in coma, by electro-ejaculation.
The sperms were stored for future reproduction. However, the Human Fertilisation and Embryo Authority contended against this decision as they stated that it is unlawful to store sperms in that manner. They contended that this was against the Human Fertilisation and Embryology Act 1990, as it requires the written consent of both the parents but in the instant case there was no written consent of Stephen since he was in coma. The Court supported the decision of the Authority, as it understood Diane’s claim to have children but the absence of consent was an issue. Since, she could not practice posthumous reproduction in the very jurisdiction; she decided to export the sperms overseas which needed permission from the HFEA. The Authorities however, declined to give any such directions for the export.
The Court stated that the HFEA had infringed the rights of Diane by imposing restrictions on her for the export of the sperms which are prohibited under section 59 and 60 of the Treaty of Rome. The Authority removed their directions and hence Diane Blood was allowed to have children by the posthumous method. Even if is stated that people might not be having property rights on themselves, but they do have property rights on their body parts and particles. The Nuffield Council stated that for storing human tissue, it is very necessary to get the consent from the person who is donating the tissue. It was also conferred that a tissue should be considered as an “abandoned object”, which eventually results as property. The very stark reality is that human beings are prohibited by the law to buy and sell their organs, but they can donate their organs during their lifetime or even after their death. This point highlights that the human beings have ‘limited’ property rights on their organs.
Whether human beings have proprietary rights on their body is yet again debatable with the age-old instance of slavery. Slavery was highly practiced all over the world and even in India in the olden ages. The slaves were the people who were made to work involuntarily for other people without any remuneration for their work. They were mostly treated inhumanly and tortured and stuck to the soil. These included sexual slaves as well who were sexually molested. In this very practice, it could be traced that the body of the slave was used as a property. The slaves had to let go off their bodies as properties which were being controlled by others. This portrays that there is an absolute control of one’s body as a property in slavery. Even in the Indian scenario, slavery was highly prevalent.
However, various legislations across the world prohibited and banned slavery as it was a very inhuman practice where a person had an absolute property right on another person’s body and had involuntary control over it. The Indian Slavery Act, 1843 banned slavery in India. These laws stated that slavery and involuntary servitude is illegal and no person can have an absolute property right on someone else’s body and as well as their own body.
Even in the case of euthanasia, many countries have prohibited it because although it is about an individual’s body, a person cannot be given the authority to kill himself/herself. However, in many other countries, euthanasia is legal and the individuals are given the choice and authority to decide upon their lives, when they are severely ill. The issue of making euthanasia legal or illegal has been a matter of debate in various countries since there are often differing views related to it. Some countries believe that is valid to take their own lives in cases where they are extremely ill and have absolutely no chance of recovery, however, others are of the belief that it is not legitimate in any circumstance.
Prostitution is another practice where the body of an individual is treated like a property. In this practice, women use their body as a property to sell if off to other individuals. They earn a living through their body. Here the human body is used like an absolute property of the individual. In the Indian context, prostitution is not elaborately illegal but it is considered to be unethical by the law. Private prostitution or using their body to earn money is not illegal but pimping, the functioning of brothels and forceful prostitution is banned under the Immoral Traffic Prevention Act, 1956. Although, in prostitution the human body is used like a property, it must not be non-consensual and exploitative.
No other individual should have absolute property rights on someone else’s body and hence forced prostitution is highly violative of human rights. However, prostitution, irrespective of its odds is still prevalent in India, where a human body is considered to be a property.
As we know, the very subject of whether human beings have property rights in their own body has various interpretations. According to Locke, humans have property rights in their body only when their labour or skill is assorted with the body or the body parts. However, his view was contradicted by the social constructivist theory, who specify that property rights cannot exist single-headedly and the government must make appropriate laws which grant just property rights to the individuals. Although it is comparatively clear that human beings do not have property rights on other’s body, however, it is still a matter of differing views on whether we have property rights on our “own” body since the common law has a very demented stand on this matter.
As we have already seen that dead bodies do not enjoy any other rights than a proper burial, it is still being contested in different cases that if a dead body has been modified by skill, then it is considered as property. However, many other cases say that they are not property. Similarly, in the case of living human beings, many cases argue that humans do have a property right on their body parts and some state that they do not. By analysing all the viewpoints and the interpretations, we can summarise that human beings do have a property right on their body, but it is however limited and not absolute. The fact that humans can donate their organs but not sell them, and humans can store and use their body parts and cells but only with the informed consent of the concerned, shows that we have a limited right on our body.
However, we can hereby conclude that property rights on the human body should not be absolute as it can lead to the wrongful commodification of the human body and can turn the human species into a black market. Human beings might use the absolute property rights in a way which is substandard and might harm the living. Hence, we should have limited property rights on the human body, where we must have the basic human rights for our amelioration and necessity.