Being and Owning: The Body, Bodily Material, and the Law

Abstract

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. The solution lies in developing a tort that is structurally akin to the common law right to privacy that, alongside the recognition of property rights in some instances, is able to adequately protect interests that arise in bodily material. This recommendation is developed through two main inquiries. First, the book assesses when a person ought to be able to possess, control, use, or profit from bodily material. Emerging from this assessment are two sets of values that arise in bodily material. Bodily material may be valuable because it retains a functional unity with the body or remains as the medium of social experience, and bodily material may be valuable as a material resource that is in short supply. Second, the book assesses whether property law represents the most appropriate structure of rights and duties to protect the entitlements that a person may exercise in bodily material. This inquiry identifies the conceptual and structural features of property law and identifies the limits to its appropriate application. As part of this analysis, an alternative to property law is developed with reference to the right to bodily integrity and the right to privacy.