19 August 2010
ByAppeared in BioNews 572
Bioequity: Property and the Human Body
Published by Ashgate
ISBN-10: 0754672808, ISBN-13: 978-0754672807
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In 2008 the Exeter County Court put an end to claims brought by six men who on being diagnosed with cancer decided to store their sperm for potential future insemination before undergoing chemotherapy treatment should the effects of the treatment permanently impair their fertility. During the storage period, the NHS Trust responsible for the gametes negligently failed to maintain the necessary levels of liquid nitrogen used in the freezing process. The semen thawed and the sperm was irreparably damaged. In pursuing damages for psychiatric damage, one line of reasoning forwarded by the claimants was founded upon the argument that their sperm was their personal property and they were thus entitled to damages.
On appeal the Court of Appeal considered inter alia whether liability arose in bailment (1). In deciding in favour of the men it held that their interests and control over the sperm did indeed amount to a personal property right. This permitted the court to then consider the tort of bailment as applicable in the circumstances, it being preferable for the men to formulate their claims in bailment rather than negligence. The men were, in principle, entitled to recover damages of nervous shock enabled by the proprietary interest they retained in the sperm, for the purposes of their actions in tort and bailment at least.
Exploring the legal theoretical approaches and consequences of Yearworth and other fact scenarios, Nils Hoppe in his book 'Bioequity - Property and the Human Body' proposes re-invoking property rights already existent in law to resolve issues concerning human tissue and the human body. The impetus is evident, as commenting on Yearworth, Hoppe says: '…it is clear from this judgment that the courts' doors are opening for a contemporary, modern and appropriate analysis of property rights in relation to human tissues, cells and body products' (p.115).
Since the Californian case of Moore it has long been held that human beings do not posses any proprietary interests in tissue or body parts once removed (2). Until Yearworth, there is little common law guidance in situations of negligent destruction of sperm. When samples of sperm were taken from a man in a coma prior to his death, the court felt it unnecessary to consider the nature of the rights of the applicant (3). Yet Yearworth clearly demonstrated the law's inadequacy in providing effective remedies in cases of a clear breach of duty, a situation the court tasked itself with clarifying.
Turning to the merits of the book, Hoppe identifies the simple scenario of someone taking something away from somebody without consent, or using that thing for purposes outside the scope of the original consent and concludes that the law delivers uncertain results and does not achieve a 'satisfactory level of desirable legal certainty' (p.3). What is the remedy for a woman whose eggs have without her knowledge been used successfully in fertility treatment of another woman? It's not only that such couple are left without remedy but the inadequacy of the usual courses of action available in tort. Hoppe's approach represents a departure from what he terms 'the unquestioning adherence to the inalienability of the body', setting out his normative framework in the third part of the book (p.7). Immersed in a discourse of entitlement(s) rather than abstract rights or ethics, Hoppe puts forward a positive case for using property rights to protect the interests of users of and donors within new medical technologies.
This leads Hoppe to wider discussions in the second part of the book, such as whether source anonymity in the area of analysable DNA information is appropriate. Hoppe identifies the overriding principle in operation amongst clinicians as one of 'solidarity' - the moral impetus to participate in medical research - commenting that in the area of medical research using human material this principle can at times over the right of self-determination. An approach centred on property rights would arguably improve the remedies available to individuals.
Hoppe identifies an undercurrent of legal reasoning within the common law in a string of cases providing relief where human material has been negligently destroyed, including Yearworth. Donors who choose to entrust their bodily materials with another, such as in instances of autologous blood transfusions or the storage of gametes, must be adequately protected in law. In developing his concept, Hoppe recognises that the common law has dealt uncomfortably with the application of property law partly down to the body's sui generis status, preferring routes formulated in procedural law and unlawful interference with the person. This, he argues, heralds the need to develop new rules akin to property but outside its traditional remit.
In the final part of the book Hoppe develops what he terms 'new property classes' which have their origins in equity. In avoiding the strictures of the common law, Hoppe argues that equity can resolve many of the conflicts that arise with new medical technologies through either its 'concurrent' jurisdiction to apply common law rules and grant proprietary rights to more than one individual and also its 'exclusive' jurisdiction to designate property rights when the common law fails to do so (p.153). Hoppe argues that in equity lies the flexibility to seemingly create new property concepts using old rules where circumstances dictate a need. Thus this new model of property in relation to human biological material arises in cases that require that application of equitable principles of fairness and justice.
Bioequity - Property and the Human Body represents a lucid and forward-thinking approach to upcoming legal problems arising from new medical technologies. Hoppe's pragmatic solution to utilise existing concepts in property is refreshingly simple and asks the reader to refresh their traditional attitudes towards ownership of the human body to develop effective ways of protecting the interests of donors and patients.
One drawback with such an approach is that property law does not provide a framework for the resolution of conflicting interests, such as the issue that arose when Natallie Evans lost her fight against the destruction of her embryos after the biological sperm donor withdrew his consent. That said, a greater value in Bioequity - Property and the Human Body lies in a much needed reorientation on the rights of the individual rooted in an alternative framework to autonomy and raises many questions for students of medical law, lawyers and the judiciary alike.
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