- Hello, welcome to today's lecture. I'm Imogen Goold, I am a professor in medical law at the University of Oxford, and I'm going to talk to you today about your body parts and the law, and specifically, do you own your own body parts, and should you. You might be thinking, why is the question of whether, body parts one that anyone would ever ask, why would we be interested in thinking about it that way at all? And if you did ask it, why is it a question that you should turn your mind to, why should I even answer it for you? Who cares if you own them or not? Does it really matter? Well, what I'm going to explain to you over the course of the next hour is why, in fact, it might matter very much, legally, whether or not we own our body parts, and why, hopefully by the end, I'll have made the case to you for why we should own our body parts, and that's the approach the law should take. To do this, I'm going to talk to you about why people care about the fate of their body parts, and why they should care, I'm going to give you a sense of the value of those parts, and the interests people have in them, and introduce you to numerous situations in which these various interests have come into conflict. I'm going to demonstrate why it is, in fact, deeply problematic if the law does not permit the ownership of body parts. So where to start? It might help first if I explain to you what I mean when I say your body parts. And as I do that, I'm going to tease out some of the ways in which we use body parts, some of these will be familiar to you, some might be quite a surprise, and in doing so, we'll see why body parts are important to various people, so what I tend to refer to as why people have an interest in them. So what are they, and why are they important? By body parts, I mean just that, I mean parts of your human body. And this might be something like a whole organ that's removed, so a kidney, this might be during life, it might be after death, but I also mean human bio-materials and human tissue, so blood and plasma, hair, skin, dandruff, all of the bits of your bodies that, in various ways, are removed, from an amputated leg all the way down to bone, and cells, and sperm, and ova. Before the advancements of modern medicine, body parts didn't have many uses. Teeth were used to make false teeth for centuries, that's true, and hair was used for wigs, but for many centuries, parts of bodies didn't have a great deal of value at all. They, and the whole deceased body, however, were the remaining symbol of a person who had died, and hence were treated with care and respect as part of the ritual surrounding death. The other main value of bodies, as we'll come to see, is that they were used for dissection as part of the study of anatomy. So this is the sort of thing, there's a huge range of pictures of early dissection. It was, in fact, one of the key ways in which, of course, we came to learn about how the body worked, and is the foundation of modern Western medicine. We also can see lots of other ways in which bodies have been used. I don't think these pictures are problematic, I've tested them on my husband, he said they made him feel a little ick, but he was fine, but the next picture is a picture of a dissected ovary that's preserved in the Hunterian Museum in London. And so one of the things that came from this dissection was the creation of dissected bodies, which would enable medical students to study their structures and come to understand their workings. The value of body parts, and the uses to which they could be put, exploded with the medical developments that came over the 20th century. Discoveries in the field of transplantation, the overcoming of the problems of rejection, meant that parts of deceased bodies could be transplanted into other people's bodies. Living donations of kidneys and lung became possible, but we don't just donate those, we donate blood, we donate plasma, bone marrow, and post-death, bone, skin, many other bodily structures can all be removed and given to others to improve their health or even save their lives, so I imagine we're all familiar with that as a use of body parts. Bio-materials extend also, though, to material that we remove or lose in the course of our lives, so by that, I mean things that we shed, fingernails, dandruff, skin cells, and we often remove tissue for testing when a disease is suspected, and this is precisely why, in fact, we give our tissue to doctors and hospitals, they test our blood, they biopsy what they think might be a tumor, and so on, these are ways in which parts come out of our body and go elsewhere for all sorts of reasons. It's also why, at birth, a blood sample is taken from almost every child, and is tested for a range of conditions, like PKU, which is a means of screening for diseases, which, if caught early, we can treat. But why would I also be thinking about the loss of bio-materials, why have I specifically mentioned that? One key reason is that most of our body parts, almost all of them, and almost all of our bio-materials, contain our DNA, and our DNA has the potential to reveal a great deal of information about us, from our predisposition to diseases, whether we're carriers of a genetic mutation that causes a disease, our familial relationships, and so on. And our DNA, as we all know, can also be used to match us to samples of our tissue, so that's the basis of forensics, that's how it works. Some tissue can also reveal other things about us, it might reveal our blood alcohol level, or whether we've taken drugs in the past, and so these might be valuable to police and others who are investigating crimes. And the reason I draw this out is, often, when we think about bio-materials, particularly in the academic literature, we really focus on the research use, and the transplant use, but in actual fact, when you begin to think about it, body parts get used in all sorts of contexts all over the world. And so it's this, it's DNA, and if anybody's ever seen the film "Gattaca," that's exactly what they're doing. The reason many of those characters are actually disposing with their materials, they're very careful about not to leave anything anywhere is because, in doing so, they'd be leaving their information, potentially, all over the place, and someone could come along, and take it, and test it, and find out things about them, that's their great concern. So what I think you can see emerging from this is there's a range of interests here. We have researchers who have interests, we have people who have illnesses are interested in the research that produces treatments, but also in transplants, the community has an interest in tissue because we want access to it for forensic purposes, and criminal prosecutions, and so on, and we can also see that people themselves have particular interests, partly because their bodies are precious to them, they're important psychologically, but also, these privacy concerns are coming out. The Medical Research Council says that human tissue research is crucial to increase our understanding of disease, it helps us develop new treatments, so it's vitally important that researchers have access to tissue because this is what they use as the basis of a lot of medical research. And in particular, we now see the development of very large collections of bio-materials, what we call bio-repositories, or bio-banks, like UK Biobank, and these are particularly important because they allow us to particular types of research that are extremely valuable. But it isn't just in the public research sphere that we see people using tissue, there's actually a big market in tissue. Bio-materials are bought and sold all the time, and they're bought and sold in a range of ways. If you are a researcher, you can look for a particular type of cancer tissue, and you can order it online, you can pay for it, and it'll come to your lab, and you use it in your research, there is a market. One report valued the global cell line development market at close to a billion pounds, and predicted its value to increase over time exponentially. In particular, it's cell lines, the idea of a cell line is particularly valuable. These are particular types of tissue, which, once they've been manipulated, they're able to self-replicate indefinitely, and so they're a particularly vital resource for research. And you might actually have heard of some of them, and the reason is some are so important, they're both famous, but also infamous. One that you might have heard of is the HeLa cell line, which was derived from the cells of a woman called Henrietta Lacks. It was a vital part of the development of the Salk vaccine for polio, but it was also taken without her consent, and her family have, in the years subsequently, really fought the use of this, but it's widespread throughout the world, HeLa is one of the most widely-used cell lines. Similarly, the Mo cell line, this was, again, a really important cell line that was created without proper consent from the person whose cells were used, and that was the basis of litigation in the 1990s, when the man discovered that his tissue had been used without his consent, without his knowledge for this, actually brought a claim, he described himself as having felt violated by this, he was offended. He was also offended that the researchers had patented it, and were set to make large amounts of money from it, and he was excluded from this. So human parts can be valuable, and when something is valuable, and also scarce, we see demand, we see demand emerging. So like the body snatchers of the 18th and 19th centuries, what we see is that researchers and medics, on occasion, have taken it without consent, or at least what we see is this market stepping in, this demand being met by people supplying it. Some of that supply is absolutely legitimate, there's no question that's the case, but my point here is that it isn't a simple situation, it's one in which there are complex interacting interests, and a desire to possess it and to use it. There are completely different situations in which tissue is used which you might not think about. So an entirely different one is the commercial context in which there are the creation of artistic works from body parts. If anybody's ever heard of Marc Quinn, he makes models of his own head, and of his family's heads, from his own blood, and one of these sculptures sold for 300,000 pounds in 2012. Another example if Gunther von Hagens' Body Worlds. Body Worlds is, it's a show where von Hagens developed a method for plastinating human bodies, preserving them. If you've ever been, it is essentially a museum full, a show full of human bodies. I've tried to choose a slightly less confronting image, but they're skin is removed, you can see their internal workings, and what he says is his goal was to educate, but there's definitely a bit of the P.T. Barnum about him, he's certainly a showman as well, there is this entertainment dimension to the use of bodies there, for sure. Similarly, performance artist Orlan, she would have surgery performed on her, and have it filmed, and she would then make artistic works from the pieces of tissue that were removed from her body. Jenny Holzer is another artist, she uses human bones in her work. There are indeed even cases of quite scandalous uses of bodies, one particularly unpleasant case from a number of decades ago used preserved fetuses in earrings, but the police were involved because it was a matter of public decency, because it was so problematic, because these uses of tissue can also be distressing, and they can be confronting to people, and offensive. One of the other collections, or uses of tissue of which you might not be aware that is particularly distressing is the collection of indigenous remains in museums, where, for many years in the 18th and 19th century, body parts from indigenous communities were taken from those communities, either disinterred, or in some cases, even taken from people who were killed for their body parts, and brought back into collections, and for quite some time now, there have been measures taken, moves being made by these communities to have those parts repatriated to them, to bring them back to rest. So what I think this shows up is that there are not just small questions about research use, but in fact, we have this panoply of ways in which tissue is used, and this huge range of people who have different interests of different kinds, and when we have complex interactions of interests, of course we're going to get conflicts. And what this does is it raises a range of questions that I think the law needs to be able to answer, and what I'm going to show you is I don't think that it always can. So one question would be who is entitled, in this mix, to possess that tissue? Can the tissue be sold? If it is sold, what are the rules about that? Can it be bequeathed, can I pass on my kidney to you through my will? Can other people access my tissue, to get access to it? So if someone wants to check paternity, can they access a tissue sample, and if so, when and how? What sorts of rights do family members have to tissue, when they might need access for their own health, say to find out which particular mutation runs in their family for a particular disease? And who should share in the profits of any profitable research? Does that matter, is that a matter for property law? So fundamentally, what I'm saying is, the question we need to think about here is what control ought people to have over their bodily materials, their body parts, once they're removed from them? So let's see how the current law does answer these questions and how often I think it fails to do so. I'm an historian as well as a lawyer, so I always think it's important that we want to see where the law came from, but it's particularly important in the context of how the law regulates body parts. As I said, for a long time, bodies and their parts didn't have any obvious value, and aside from their importance as a symbol of the person who lived, and as a means to learn about the workings of bodies, but there wasn't much else of value, so we don't see a lot of case law, but we have some unusual cases that really set the foundations for the law when we came into the 20th century, when things really exploded. And so it's important to understand those origins to understand what the questions are and what the debate is. So let's take a look at dissection for a moment, because this, in part, is the context in which these early cases emerge. For a long time, dissection was regarded as a desecration of the body. Across cultures, but particularly in Christian England. for many centuries, the idea of dissecting a body was offensive to people. But at the same time, medical students, doctors were wanting to learn about how the body worked, and needing access to corpses, to cadavers, to body parts, to study them and learn. So from the 14th and 15th centuries onwards, the study of medicine was increasingly driven by this desire to access bodies, and so what we saw there was the first real clash between demand and supply. In England, the practice of dissection, by the 18th century, was widespread, but there wasn't an easy supply, and some of you may well know where the supply came from, it came from the theft of bodies, from grave robbing, and eventually, when Burke and Hare, and others entered the fray, from the murder of the living to meet this growing demand. There wasn't any way that the law was providing any supply, so it really was very much a black market that was emerging here. We saw the passage of the Murder Act in 1752, that allowed judges to sentence convicted murderers, to be dissected as an extra punishment. In one way, it gave a bit of a supply, but the problem was it made dissection of bodies even more problematic, it made it seem like not only was it a desecration, it was now really firmly constructed as a punishment. In 1828, a parliamentary select committee met to try to deal with the problem, what could they do about this great problem of body parts and bodies being stolen from corpses. They spoke to a number of retired resurrectionists, as they called themselves. One said that he stole more than 1,000 adult corpses and almost 200 of children over the course of four years, while prominent surgeon of the time, Sir Astley Cooper, boasted that he could get the corpse of anybody he wanted. So if you died, he said, I'll be able to get you if I want you. The next year, Burke, the famous body snatcher, was sentenced, and eventually executed. It still didn't make much difference though, they didn't really deal with the problem, and it took the violent death of a 14 year-old boy in 1831 to really spur the law to deal with this problem. And what they did was, is they produced what was eventually called the Anatomy Act, the Anatomy Act of 1832, and this tried to meet the supply, it tried to meet this demand by saying that those in lawful possession of an unclaimed body could hand it over for study, for dissection, as long as no relatives objected. Now, this seems like a bit of a reasonable solution in some ways, perhaps, if this is done with consent, no one's objecting, but the reality, of course, was that these unclaimed bodies were the bodies of the poor, because they're unclaimed because people couldn't afford to bury their deceased. So what we see here is the replacement of one unpleasant solution with another, so we reduced the need for the resurrectionists, but instead, we used the bodies of people who are so poor that they can't even bury their dead. It did eventually put an end to the black market in the trade in bodies, it's true, but we wouldn't say that it was a good solution. That act remained in force until 1984. But the legislative story is only one part of this story, and the common law steps in as well from the 17th century on, by that, I mean decisions made by courts, and it lays another vital part of the law's foundations. Our journey through the case law begins in the 17th century, because it's here we find the origins of a really fundamental element of the common law position on the status of human tissue, and that is that a corpse cannot be the subject of property rights, what is often called the no-property-in-a-corpse rule, you cannot own a corpse. The rule's origins are murky, its foundations are dubious, and arguably, as we'll see, it's actually been undermined by a recent decision, but the law remains in flux, it's very difficult to say what the current law is with any degree of certainty, but it remains good law for now. The origins lie in a case from 1614, we call it Haynes' case, and in that case, William Haynes, having disinterred four bodies, he removed the winding sheet, so he took from them the cloth that they were wrapped in, and then he reinterred the bodies. The question in that case was who owned the sheets, because he was being charged with theft, essentially, and to do that, you had to know who they'd been stolen from, did somebody have ownership of them that he, in taking these, had therefore interfered with? The court said the property vested in whoever had owned the sheets before they buried the bodies, and he was found guilty of petty larceny. And of course, as the bodies were replaced, he clearly hadn't stolen them. But despite this, the case was reported by legal commentators of the time, and for many years afterwards, to mean that the corpse itself could not be property. The basis for this misrepresentation probably stems from some comments in which the court says the property of the sheets remains in the owners, that is, in him who had property therein, when the dead body was wrapped therewith, for the dead body is not capable of it. A dead body, being but a lump of earth, has no capacity. And it seems that this was misinterpreted, partly because they simply didn't interpret it correctly, but also because some of these classical legal scholars, like Sir William Blackstone, already believed that this was the rule. These were natural lawyers, they believed the law was simply, this was the law, that corpses simply weren't a fit subject for the rules of property, it wasn't right that they could be owned, and the law shouldn't say that they could. In the 18th and 19th centuries, numerous cases came to the courts concerning dealings with buried and unburied bodies, body part use wasn't really an issue at this stage, and we don't have time to consider them all in all their complex dimensions, but what was really clearly recognized throughout the 18th and 19th centuries is that in almost every case, a body couldn't be owned, it wasn't possible to have property rights in relation to them. So I'll give you a taste of the kinds of cases that the courts were dealing with at this time. One from 1749 is the case of Exelby and Handyside, and this was an action for the return of the body of stillborn, conjoined twins. Dr. Handyside was a male midwife, and he'd delivered the twins, and when they died, he took them with him after birth, and he displayed them as a curio. The twins' father, not surprisingly, brought an action in trover for their return, what he wanted was the bodies back. And the court found in 1749 that Dr. Handyside should return them to the father for burial, as no person had any property in a corpse. So they're saying the doctor couldn't keep them, he couldn't sustain this claim that he owned these bodies, that simply wasn't how bodies were dealt with. So you can see that the property is actually doing some good work, which we'll come back to. Some years later, there was the case of R. and Lynn, this was a case in which there was a theft of a corpse from a graveyard for dissection, the first of our body snatchers cases. A reference was made here to the fact that a body couldn't be owned, that it was not the property of anyone. So this position was repeated and repeated throughout these cases, there are many instances where people take bodies, for all sorts of reasons, in the 19th century in particular, often, it was disputes about how they should be buried, where they should be buried, should they be cremated, so people disinterring bodies to take them for a cremation. And what comes out of these, two things, by the end of the 19th century, is one, that it can't be owned, but three cases do establish one thing that is important, and it's the beginnings of a slight shift in the law, and that is that you can have the right to possess a body for the purposes of burial. And this is how the law still thinks about bodies, that someone, usually the executor, but others potentially, can have a legal right just to possess the body for this particular purpose, so a type of property interest, you can have that. Now you might wonder why I'm laboring about this distinction between owning a body and possessing it, but they're not the same thing. The distinction is really important in the law of property, it's important here, it's important as we go on. To fully explain this would take a long time, but I'll give you a simple analogy that can probably help us see the distinction between owning something and merely having a right to possess it. Think of an article of clothing, let's say it's your suit. You would say, and the law would agree with you, that you own the suit, it's my suit, you bought it, you're in control of it, you can wear it, and sell it, you can throw it away, you can do as you like with it. I, however, can't do anything with someone else's suit, so if it's your suit, I don't get to wear it, I don't get to touch it, I don't get to sell it, I don't get to do anything with it, it's yours, and if I try to, you can call the police, and I can be charged with theft if I've taken it, and you might bring some civil claims against me as well, that's what ownership does, it keeps it exclusively to the owner, I can keep you out of my property, and you can keep me out of yours. But what's happening when you take it to the dry cleaner's? Well you hand it over, and the dry cleaner hangs onto it in their shop for a day or two, they clean it, and when you pay, you get it back. Are they the owner for a little while? Well the law says no, but they're not a thief either. What they are is what we call a bailee. What I've done is I have given it to them for a certain amount of time, to do certain things, and there will be constraints on what they can do. We call this a bailment, and they hold it in that way, and what it does is it gives them a right to possess it for a purpose. And it's this concept of, you can lawfully possess something while not becoming the owner, that's a really important distinction that property gives us, and we'll see, later on, when we come back to this idea of bailment, why it's so important. And that's what we can see partially is happening with bodies being buried, is someone is being given a right of possession for a certain amount of time, for a purpose, but they don't own it. So this is where we leave things at the end of the 19th century, no ownership of a corpse, but there's a right to possession for a particular purpose. So what happens next? Well at this point, what we need to do is move from the English courts and go to the Australian courts, and the reason for this is an extremely unusual case comes to the Australian High Court that sets the stage for big developments, fundamental changes, arguably, in the English law later on in the 20th century. The case is called Doodeward and Spence,

sadly, yet again, we have a case of a plaintiff who has, in a jar, the corpse of an infant with two heads, who had died, and had been preserved in this jar. He'd been exhibiting this around Australia, and the police charged him with indecent exhibition of a corpse, and the policemen took the jar and the body. And the plaintiff, the showman, tried to get it back. The police gave him back just the jar, and he brought an action, saying, you need to give me back the body as well, it's mine, I own it, that was his argument. He brought a claim in an old fashioned action called detinue, but what he had to show to succeed was that it was his property, because the law there required, for this action, that you showed you owned it, and to do that, he had to show that this body was property, and his property. So for the very first time, really, the courts had to deal head-on with the question of, is it property, because if it wasn't, then this action had to fail because it didn't work, because it rested on the idea that the body was property. And the Australian High Court found that it could. So here we had had centuries of the courts in England saying no, you can't own a corpse, it's not the right sort of thing, it doesn't fit in this category, and the Australian High Court says yes, you can. How do they get to this view? One of them, Justice Higgins, said no, you can't, you absolutely can't own bodies, and so he dissented. Justice Barton made it clear that he agreed that there was no property in a corpse awaiting burial, he however took the view that this one could be owned, but he did so on the basis of really pretty offensive views, which were he simply just didn't think that this was a human body, he didn't think that it was a fit subject for being regarded as a person because it had two heads, and essentially, in a view that's obviously an anathema to modern thinking, he thought of it as something quite other, and so we probably wouldn't listen to his opinion either. But the key person whose opinion made all the difference is Chief Justice Griffith, and what he said is that it doesn't follow from the mere fact that a human body at death is not the subject of ownership that it's incapable of ever becoming a subject of ownership. And what he said was it's quite clear that there are plenty of bodies and body parts that are in fact owned and treated like property all the time, he talked about mummies, and prepared skeletons, and skulls, and other parts of the human body that are kept, and used, and possessed. And so he said it must be the case that these are, at some point, able to be the subject of property rights because we're treating them like property, was his point. So he didn't say the rule didn't exist, but he said we need to explain what's happening here, and he offered an explanation, that's still in force today, it's now enshrined in legislation in this country, and it affects the outcome in numerous cases that we're going to look at. And what he said was, is that there will be occasions when you can gain a right to possession at least if something is done to a body that changes it from being a body that's awaiting burial into something else, he's saying there's something that could be transformative. And he says it's the lawful exercise of work or skill, he says if we work on a body, or a part of a body, we can change it from something that is a corpse that needs to be buried, and that's what will happen with it, into something else, we differentiate it. And he says if you do that lawfully, you will gain these possessory rights. He doesn't give an exhaustive enumeration of all the circumstances where this happens, but he opens up the idea that this is how we can explain it, and this is how the law can say, this is what it looks like when we would accept that somebody can own part of a body. So this was a huge departure, and it created the basis for what we now refer to as the work and skill exception to the no-property rule, and it offered a solution, that we're going to see what it achieved in the English courts shortly, but this was groundbreaking. And in some ways, it's informed by Lockean ideas about working on things that have no owner, but really, what he was trying to do was give a pragmatic solution in a situation where, otherwise, you wouldn't have an answer, you would end up with absurd situations, and that was one such, that he was saying there are plenty of instances where things are demonstrably treated like property, we need to find a way for the law to explain what's happening. So that was the law in 1908, not a lot of happens in the common law for quite some time in the 20th century. We do see some change legislatively, the Human Tissue Act 1961 was passed, creating quite a basic consent model. So running in tandem, we have these no-property cases, we have Doodeward, then we see the legislator beginning to create ways to deal with tissue, and they're doing this because we have this burgeoning science of transplantation, medics are getting better at succeeding, we're on the cusp of seeing widespread organ transplantation being possible from the late 1970s onwards, and we're also seeing an expansion in the use of tissue in research. So they pass the Human Tissue Act to manage this, and it provides a very basic consent model, it essentially says that bodily tissue can be used for therapeutic purposes, so treatments, for education and research, it doesn't define these, and this can happen if someone is lawfully in possession of a body or parts, and they have no reason to believe that the deceased or their family would object to the use, also, they can give their consent, so you're able to donate if you could consent, but also, they could use it if no one was objecting. So you can see how the origins of that are lying in the Anatomy Act, it's a step beyond, but not a big step. That act was widely criticized. Sadly, we don't have time to go into all of the organ retention scandals of the late 20th century, but this is what laid the foundations for those, and if people have questions about that, we can talk about them at the end. But certainly, this very thin consent model, with not much detail, was part of the context that led to the retention of organs, and tissues, and so on that many of you will probably be familiar with. Despite those problems, however, that act remained in force until 2004, so that was the law, we have this thin consent model, and we have this odd cluster of cases that don't tell us much. So by the late '90s, really, we have this patchy, piecemeal, not particularly effective legal framework. We don't really know what bio-materials are in the law, and in a way, it didn't matter terribly much, but what we'll see from these cases I'm about to tell you about, it came to matter very much indeed. I'm going to look at two cases, there are more, but for the interest of time, we'll look at two. The first of these is the case of Dobson and North Tyneside Health Authority from 1996. This was a case in which the woman, Deborah Dobson, had died, she had a brain tumor, and she died in a hospital run by the Newcastle Health Authority, and her body was autopsied. And when they did that, they took her brain, and they preserved it in paraffin, and they made slides from it, so they used these to work out what had happened to her. Her family later accused the hospital of negligence in her care, and what they needed for this claim was they needed to show this negligence, they needed proof, so they tried to get access to the slides, to the brain that they knew had been taken, they knew she'd been autopsied, they knew things had been retained. And when they tried this, the hospital said, we've destroyed the tissue, we've destroyed the slides, we've thrown them away. Crucially, what they do is they then decide they will bring an action against that hospital for doing that, for destroying the slides, destroying the tissue, because, effectively, they've destroyed the evidence they needed. And the way they argue this is they say, those slides, they were property, they were our property, you were bailees, you were holding it, like the dry cleaner, you were holding it, you should have kept it safe, and in not doing so, you have done something wrong, is the gist of their argument here. To do this, to succeed in this, essentially saying that they had converted them, it's slightly unclear from the way they argue in the case, to do this, they have to show that that brain was property, because this bailment relationship, it all rests on being about property, and if the thing you're trying to talk about isn't property, it all collapses, because these are legal devices that only relate to property. So they had to go into court and say this preserved brain was property. You can probably guess how they tried to do this, they argued that Doodeward and Spence meant that the preservation of this brain had changed it, it wasn't a corpse awaiting burial anymore, it was now something different, it had undergone a process of human skill, work and skill had been applied, and in doing that, in preserving it, it had become something else, it had become property, and therefore this whole argument could run. Actually, Lord Justice Peter Gibson rejected Doodeward as the basis for this proposition, he wasn't prepared to accept it, and there's legal arguments as to why that might have been right, but he still accepted that the no-property rule existed, and he still accepted that, in fact, there was a work and skill exception, he just didn't accept Doodeward as the origins of it, which was an unusual position to take, but that's the position he took. But then he said he felt that this sort of preservation wasn't the sort of thing that work in skill exception meant, it meant other things, this was not enough work and skill. Whatever would fit it, he doesn't really say, but what he says is this doesn't fit,, and they lose. Two years later, the courts find themselves dealing with another case in which a similar question arises, but they deal with it quite differently. This is a particularly unusual case, I mean all of these cases where people are dealing with bodies, there's often quite a few of them that are unusual, but this one, I think, is the most unusual, and you might have heard of it. In this one, Anthony Kelly was an artist, and between 1992 and 1994, he gained permission to go to the Royal College of Surgeons and to draw some of the specimens that were there, like the ovary that I showed you before. He befriended a technician who worked there, Neil Lindsay, who, over time, over the course of these three years, removed specimens for him, so removed these jars that had dissected parts of bodies in them. He made casts of them, he did all sorts of things to them, he kept them in his home, he buried them around London. And eventually, he was found out, he had an exhibition, the police were involved, they found out, and he and Lindsay were charged with theft. They were charged under section four of the Theft Act, and of course, the Theft Act is about the taking of property, it's about infringement of people's possessory rights to things, and so what they argued was, is they said it can't be theft because theft is about property, and we all know that bodies can't be property because no property in a corpse, therefore we can't be guilty of theft because we didn't take any property, and the act doesn't apply. I like to think of them thinking it's a gotcha argument, we've got it, ha-ha, we've escaped from the law, but you might also be thinking that sounds like what we might call a technicality, getting off on a technicality, and you'd be right, that's exactly what you should think. And in fact, the Court of Appeal wasn't convinced by this at all, They said, yes, there's no property in a corpse, but they also accepted Doodeward held, they said, actually, sometimes, body parts, bodies are property, or certainly, people at least have a right to possession. So they, like the court in Dobson, worked through the work and skill exception, but they came to a different conclusion, they said, in fact, because of the expert dissection of these pieces of tissue, and the preservation techniques that had been used, they had in fact gained a right to possess them, at least sufficient to say that when someone took these specimens, they could be guilty of theft, they were capable of being stolen because the Royal College had enough of a right to possession that when someone took it away from them, they had in fact infringed on that in a way that constitutes theft. Kelly was convicted and sentenced to nine months in prison, so they didn't succeed. So what should we make of these cases? Well, I think a big part of their importance is that they show what happens if we don't see bio-materials, if we don't see body parts as property, because when we do that, even though body parts are corporeal things, they fall outside the rules that we use to deal with interactions with things, or our relationships with one another about things, which is how property law thinks about things, it doesn't think about your relationship with something itself, it thinks about what are our relationships as people in relation to the thing. And in this context, we could say, well, the Royal College had a right to possession, it could defend against everybody else in relation to these specimens, that's the way it's thinking about it. And I think what they show is that it is absurd, it produces all sorts of absurdities if we don't see body parts as property. So what if someone had gone into the Saatchi Gallery and just taken Marc Quinn's "Self," would that have been okay? If someone goes to Body Worlds and tries to take some of the plastinated bodies, would that be okay? Of course it wouldn't, we would demonstrably think that was problematic, we would want to be able to say that the people who produced those, and made them, and display them, have some right to possession at least, that they can defend against people who might try to take them. So this is the first strand of why I think we need to regard bodies and their parts as property, because often, the law needs them to be this way so that the rules we use to regulate things can be used to address the problems that arise if people try to dispossess one another. There are, in fact, numerous other cases where, in fact, had the courts refused to see body parts as property, and found ways around this no-property-in-a-corpse rule, we would have seen all sorts of other absurd results. So in the 1970s, there are a number of cases where people give blood samples and urine samples to the police, and then they destroy them. In one, the defendant gives a urine sample, and then he quickly tips it down the sink, so he's done what he's supposed to do, but then he destroys it, he's charged with theft. In R. and Rothery, similarly, he gives a blood sample and then he takes it away from the police station in an attempt to get away. And in both, they're charged with theft. The court, in those cases, doesn't even think about whether the no-property rule applies because it's so self-evident that it must be property within the concept of the Theft Act to make sense of what happens here, and to ensure that these people who have undermined the police's ability to take tests of their tissue don't succeed in that. We also see an Australian case, of Roche, that was a case in which the court needed access to a tissue sample to determine paternity in a particular case, for the purposes of dealing with a will, and in that case, the rules of the court specifically said the court can access any property it needs to determine a case, and it was argued in that case, well that doesn't include tissue samples because they're not property, and the court simply says, look, it's just good sense to ignore this no-property-in-a-corpse rule, and see them as property, because of course we need access to these preserved samples because of course we need to determine paternity, and it would be ridiculous to say we can't do that purely because of this old-fashioned rule from the 18th and 19th century. So this is a rule, but this is, I think, an argument based on expediency, the law needs us to conceptualize body parts as property to do its job a lot of the time, and to arrive at the kind of results we would largely think are correct. The high point of this expediency is the case of Yearworth and North Bristol NHS Trust, and this is where the courts really hit a wall where they have to get around it by using property concepts, and had they not, the men in this case would have had no remedy, and that would have been clearly unjust. And it's the first time the courts had to deal not just with possession of bio-materials, but damage to them, so a different question. We've seen lots of dispossession cases, but this was one where someone actually damaged somebody's important bio-materials, and if you think about it, that has to be another important question for the law to deal with, what happens if you damage something, what happens if you go into Body Worlds and you walk around and destroy things? What happens if somebody goes into a research lab and destroys tissue, what do we do about that? Well this case, hopefully, tells us part of the answer, or it certainly illuminates the problem, and why we need a solution to it. In this case, all the men had been diagnosed with cancer, and prior to undergoing treatment, they provided sperm samples, which were stored, to preserve their fertility in case the cancer treatment destroyed their fertility, so this was important to them, these were valuable samples for them, this tissue was important to them personally, in a way that it was irreplaceable. And what happened was the samples were destroyed, they were allowed to defrost due to negligence on the part of the trust that was holding them, and the men suffered exceptional levels of distress, they suffered depression, they were deeply psychologically traumatized by this because they thought that they could no longer have children, they'd relied upon the protection of their valuable samples, and they'd been failed. What they did was, is they wanted to claim for their psychiatric injuries, they wanted to claim for the depression and the harm that this had done to them, but the law on psychiatric injury is Byzantine to say the least, and where you have a psychiatric injury that doesn't flow from any physical injury, the laws are very, very strict and quite constrained. So if I'm in a car accident and I'm physically injured, and I also suffer PTSD, that's quite simple, one flows from the other, that's fine, but when I merely suffer, merely, suffer psychiatric injury, with no other physical harm, the law only allows me to succeed in a claim against someone for that when they induce it negligently if I was in fear of my life, and that's what did it, so if I'm a primary victim, or if I see someone who's a very close loved one be harmed, only then, pretty much, can I succeed. So they were left in a problem, they didn't fall into those categories, so their next option was to say, did they suffer a personal injury? One of the questions the court thought about was, if someone's tissue is taken from them, if their sperm is removed, and I damage it, is that a personal injury? And the court said no, this would do violence to the notion of what a personal injury is. A personal injury is, you cut my hand, you hit me on the head. They talk in that case about this idea of, well what if, what if, what if you're in surgery, and you are taking tissue from one part of the body to put it somewhere else, what if I was taking skin from somewhere, say from my hip, to put it on my arm, and on the way, you take it off, and you drop it on the floor and damage it, is that a personal injury? So they wrestle with this, but they end up saying no, no, no, no, no, no, that's too far, it's only a personal injury when it's attached, and if it's not attached, it's something quite different, we're not sure what it is, but it's not that, so they reject that. So you can see these men are hitting walls everywhere, the law's just not letting them, and because the law works by categories, and it works by rules, and it works by principles, and sometimes, a situation arises, and the law doesn't have a category or a principle that works for it, and that's what this case is about, so they were stuck. And they didn't have a contract either, because it was an NHS hospital that was holding them, so they couldn't even say, well you've breached the contract, which would have worked, because you can have contracts that protect you against distress, and then you can claim for the distress you suffer when your contract is breached, couldn't do that. They had what we like to call, there was what we normally like to call a lacuna, the law had a hole in it, and the court had to fill it, because clearly these men have been harmed, and clearly they deserved a remedy, and the answer lay in property. So what they said was, all right, all right, what if the sperm is property, what if it's been preserved in some way, what if it's property in some way? If that were the case, the trust would be a bailee, and the trust has been negligent, so they've breached their bailment agreement. And that's the way the court reasons, and they find this way, say, ha-ha, well if that's true, we could then take a step sideways and say, well you've breached the bailment, we could look at contract law, which has awards for people who are distressed when people breach their agreements, this was a very dubious step, it's been highly criticized, and we could give you the distress measure in contract law to make you feel better for your psychiatric injury, and that's what they do. I, and my colleague Muireann Quigley, have criticized this, as have many others, this is some legal maneuvering, it really is, and the reason they're having to do it is precisely because the law didn't produce a solution for this really clear harm to these men, but the way they achieved it was property, by calling that body part property, by calling the sperm property, they found an answer, so that was the leap that they made. So you might think from all of this, maybe if you're convinced by my arguments, you might think by now, well why is anybody arguing that tissue should be anything but property, it seems clear, it seems very necessary? But in fact, this isn't the approach that the legislature takes. The old 1961 Human Tissue Act was replaced by the 2004 Tissue Act, it doesn't take a property approach, it's a consent-based model. It's a much more well-developed, really effective consent model, it's really detailed, it tells you what constitutes consent, gives you lots of situations in which it explains what to do, and it's a huge step on, and this was the reaction to the organ retention scandals of the late 20th century, so in that sense, that's good. It preserves the work and skill exception, that's fine, but it doesn't go wholeheartedly for property, so why is it that people would resist this approach? Well I'll give you some of their arguments, and then I'll tell you why I think they're wrong. One of the reasons is that people say body parts are special, they're not like other things, they were part of someone who lived, someone who was unique, someone who was important to people, and it seems wrong to people to say I'm going to treat a body part in the same way I'm going to treat a pen, or a clock, I'm going to put it in the same category as pens, and clocks, and cars, and tables, that seems wrong. And in a sense, that's appealing. For other people, they think that the idea of commercializing body parts, that's where the nub of the problem is, they think it's wrong to sell, it's wrong to allow markets in organs, it's wrong to allow my blood, or my plasma, or my hair to be sold. Sometimes, that's simply because people feel it's ick, sometimes, people just think it's wrong. The best explanation, I think, is Margaret Radin, who's an American academic, and she says part of the problem with doing that is when you put things that are human into a market, you make humans fungible, you make humans things that are commensurable with money, and exchangeable for money, it's how we might explain what's wrong about prostitution, you're making me tradable for money, and that's really not treating me as special, because I'm just exchangeable. And she says, when we do that, then we begin to lose our sense of the specialness of persons, we erode that sense that human beings are important and special, and you shouldn't be able to buy them with money. And so people have used her theory to say this is what feels wrong about commercializing body parts, they should remain special, we should think of them as being special and important. For others, it's things like organ donation should remain a gift. Thomas Murray, who's an American philosopher, says gifts of the body have to stay gifts, it's what bonds us as a community, it's what pulls us together, the fact that I give and you receive, and that's important, and that if we allow ourselves to sell our organs, all of that that binds us as a community gets lost, and that that's a terrible loss. And I think there's a lot to be said for both of their arguments, but the thing here is, you can have property that you can't sell, property doesn't necessitate sale. I can't sell you prescription medications, I can't sell you a handgun, we can control what is saleable, but still regard them as property, so we can sever those two concepts, I think. I also think this idea that bodies are sacred, and important, and valuable is absolutely true, and in fact, I've given you lots of examples where bodies were absolutely valuable. But in my view, property is good for that because what it does is it allows us to protect things that are important to us, because it tells us who has the right to use it and possess it, and destroy it, but it lets me exclude you. So that way, I can say, my wedding ring, you can't take it, it is special, it is important to me, and I can exclude you from it, property actually enables me to express my feelings of strong importance about things precisely because it lets me exclude other people. So in fact, it's what we would want to enable us to protect that sacredness. And in fact, if you think about it, when you give me strong control over my severed body parts, you're reflecting the strong controls the law gives me over my living body, laws about rape and about assault are all about keeping other people out of my body, and I think of property as an extension of that once that body part is taken from me, it's reflecting the same idea, that my body is special to me, albeit differently special, but still special. So those are some responses to those concerns. There are, however, some slightly better arguments than that. One of those arguments is that, one of the problems of property is it also might give us too much control. So yes, I might protect a researcher, and their tissue becomes their possession, and they've got stable possession, and they can do their research, and they're not going to be disturbed by me, that's great, but it might be that, sometimes, some people have so much control over tissue that it's a problem. So what if I transfer my tissue away to a researcher, I give it as a gift to her, and then I change my mind? Too late, just like when I give you a birthday present, I can't take it back, I've made a gift to you in law and it's not mine anymore, it's yours. That might be too much control, particularly when we remember that tissue is special, it's got my information in it, you could learn all sorts of things about me and I might not be able to stop you anymore. So the key, I think, argument that might undermine me is this idea that maybe property gives too much control, its strength is its weakness, and I'll give you two examples, briefly, because we're getting close to time. One of those is an American case called Colavito, and this is a case in which a man called Peter Lucia died, and his widow tried to give both of his kidneys to his friend, who was in end-stage kidney disease. The friend only needed one kidney, but he wanted to make sure, he wanted to give him both. The organ donation network didn't allow this, and so what they did was they gave one to the friend, and the other was allocated elsewhere, but the one that went to the friend turned out to have an aneurysm, and it wasn't any good. So he then, and later his widow then claimed, when he died, that he should have had both,

the kidney was his friend's, the friend gave it to him, that was a transfer of property, it should have been his, both of them, the friend should have been allowed to do that. And the court in that case says no. Partly, they just don't think that organs should be property, for lots of reasons, but the particularly important argument here is they say that's too much control, for one person to be able to conceptualize them as property and do whatever they like with them, no, that's wrong, because that undermines our ability to share organs in a way that helps everybody, that is efficient, that allocates them so that the most lives are saved, and that property, the strong controls that property would give it would actually undermine a really morally important thing that we're doing in the community, and I think that's a really convincing argument. Another is the case of Catalona and the University of Washington, and this is a case in which William Catalona was a researcher and a surgeon, and he had established a bio-repository of tissue, particularly prostate cancer samples, from men that he treated who had prostate cancer. And he went to move to another institution, and he wanted to take the bio-repository with him, he thought it was his, I'm going to take it with me. Washington University disagreed, they realized how valuable it was, and they said no, it's ours, we own it, you can't take it. And the interesting thing for our purposes is he then wrote to all the donors, and he said to them, can you tell the university you give consent for me to take your sample with me? They did, thousands of them. It didn't matter, because the court said, well actually, Washington does own the repository, we're going to treat it as property, their reasoning's quite confused and confusing, but they say yes, they own it, and when the men donated, they made a gift, and they gave up all of their rights to their prostate tissue, so they don't have a say anymore because they gave it away. They had all the control, but what happens when you give something away, when I give you a gift, or I sell something, I go from everything to nothing, and that's what happened. And so the men didn't get a say, and Washington retained the bio-repository, even though these men wanted to help Catalona, wanted him to take it with him, they couldn't do it. And that, I think, is the other side to this, is that, sometimes, maybe property gives too much, in the same way, in a fit of pique, I go and pawn my wedding ring. I'm furious with my husband, that's it, we're done, we're done, we're done, and I do that, and the next day I think, eugh, now I feel dreadful, of course I want it back, but it's too late, someone's bought it. The flip side of property is I don't have an option anymore, it's too late, I had all the control, then I had none of the control, and so maybe you think that that's too big a jump. I don't take that view, and I'll tell you why in a moment. What I think we need to see here is that when we're thinking about how to deal with tissue, what we need to do is to think about what's most important, partly, and which problems do we need to deal with. And partly, I think, we need to make sure that we ensure that people have legitimate control of tissue, have that possession, have that ability to use it, protect it, we don't want them to be vulnerable, we don't want bio-banks to be vulnerable, we don't want things like Marc Quinn's "Self" to be vulnerable, we don't want Body Worlds to be vulnerable. We also don't want to leave the law in a position where it has to resort to legal fictions to get to sensible outcomes, and we need to not be in the dark about what is happening at various points when tissue is being used, so we need an answer to the question of whose is it, who gets to choose what happens to it, who can give it away, and what happens when they do so, and I think property does that best. I think the key thing to say is that, yes, there's a lot of benefit from a consent model, one of the good things about a consent model in the HTA is it gives us a really careful model thinking about what is happening when you transfer it, what do you need to know, what do you need to tell people when it happens, so it adds in the thing, it wouldn't have this problem that you have in Catalona because you have to go through this process of getting informed consent, and really telling people what is going to happen. So it isn't that property has to undermine that, but what I think it does is it does more than consent because it tells us what happens at all of these transfer points. So I think, in a sense, the reason that property's important is that it answers lots of questions that we wouldn't otherwise have answered, and I think that it gives us an answer at any point in time, because one of the key final things to understand about property is it's based on the idea of relativity of title, so we always know who's got the best right of possession. Initially, my pen is mine. If I leave it here, if I forget it, I lose it, and someone comes along, it might be the law says, well actually, Clare, and Gresham, are in control of this space, so it's theirs, they've exerted possession over it, so Clare's allowed to possess it, but if I come back and say can I have my pen back, Clare has to hand it over. If I drop it in the street, no one's controlling the street, so if someone picks it up and finds it, they get to have the best right of possession as a finder, but if I come along and say, excuse me, I've just dropped my pen, you have to give it back. But if I don't turn up for six-odd years, then you can keep the pen, and you're safe. What the law does at every point is it tells us who's got the best right of possession, who's got the best right to this relative to everybody else, it fills in all the gaps in a way that consent doesn't, consent just tells me what happens when I say to Clare, you may borrow my pen for a while, but it doesn't say what happens, if it's not property, it doesn't say what happens if Clare gives it to one of you, and then you walk down the street, and you hand it to somebody else. Property tells you that, but consent doesn't, it only tells me about my relationship with Clare, and that's a gap. So for me, property's the obvious answer. The final question to think about is whose, and this is the really interesting question, is it mine, is it yours, is it a researcher's? Would it be better, as some people argue, that the community owns it, that we are, in fact, one of my colleagues at Oxford argues that we're all part of the same biomass, that our bodies interact with one another, and in fact, we should see bodies as a community, as part of the community, and we should own them communally, or at least we should have a system which enables a much more sharing, community-orientated system, which I have a great deal of sympathy for. So it might be you say, well actually, don't make the person from whom the body parts were taken the initial owner, that might be your view, it's not my view, but it could be yours. I think the other thing we can say is that we can ameliorate some of the problems with property by simply placing rules over the top of that system. So we could say it can be used for some purposes and not others, we could say that when I transfer tissue to someone, it's a bailment, it's not a gift, so I've always got a bit of control, or we might say there's certain things that you can't do to protect my privacy, you can't test tissue that's from a person, whether they own it or not, without that person's consent, so even though I've given it away, you can't do DNA testing on it without the source's consent, or you can only do it if it's de-identified, all of those problems I think we can fix. But fundamentally, I hope I've left you with the idea that there is a good reason to think of our bodies as owned in some sense, it does make sense, it's actually, in my opinion, vitally important. Thanks very much.(audience applauds)- Our first question is,"Funeral directors and coroners"have possession of corpses for particular purposes,"are there any reported case, legal or otherwise,"where problems have arisen as a result of this?"- Not so much in this country, but certainly in the United States, there were some serious problems with mortuary staff taking parts of bodies, selling them, and one of the key problems was that some of those bodies, people had died of cancer, and they'd supplied tissue into the bio-materials market that was infected with things like cancer and diseases, and it was very problematic, and very distressing, so certainly there have been problems.- "In the 1749 decision,"how did they define the corpse then,"and on what ground were they returned to the father?"Was the public policy,"medical scientific development ground available back then?" Thank you.- No, so essentially that was a case where they agreed it, that they settled, in a sense, and gave it back, so they came to a reasonable solution, in reality. We don't know a great deal about it, there's very sketchy reporting.- [Questioner] My first question is, if we're talking about owning body parts, would it make sense that if somebody made a will, can you put that my body is property in the terms of the will, and the second question is, if something does happen later on, and you get an amputee, and you get an artificial implant, would you need to change the will?- Legally, at the moment, you couldn't do those things, so you couldn't say I'm going to bequeath my body. What you can do though is use the provisions of the Human Tissue Act, which allows you to make certain decisions about what's happening to your body. So you could donate it to research, but you can't make conditional directed donations of your organs, necessarily, say I only want it to go to people who wear red hats on Sundays, or something, you can't do that. You can make certain decisions, but not others.- Professor Goold's next lecture is on freezing eggs and delaying fertility, law, ethics, and society, and that's on Monday the 11th of April at 1 o'clock, so please do join us for that, and let's thank Professor Goold again.(audience applauds)