The Legal Status of Body Parts: A Framework

Wall, Jesse

doi:10.1093/ojls/gqr023

Cited by 16 publications

(9 citation statements)

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“…Debates have centred on what components constitute ownership and what criteria have to be fulfilled in order for something to owned (Campbell, 2012;Wall, 2011;Becker, 1980; 1 Many others have also noted how these features recur in property rights discussions, though not everyone labels this as a property rights framework. As examples, see Campbell (2012), Leder (1999, Joralemon (1995).…”

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confidence: 99%

Neither property right nor heroic gift, neither sacrifice nor aporia: the benefit of the theoretical lens of sharing in donation ethics

Zeiler

2013

Med Health Care and Philos

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Two ethical frameworks have dominated the discussion of organ donation for long: that of property rights and that of gift-giving. However, recent years have seen a drastic rise in the number of philosophical analyses of the meaning of giving and generosity, which has been mirrored in ethical debates on organ donation and in critical sociological, anthropological and ethnological work on the gift metaphor in this context. In order to capture the flourishing of this field, this article distinguishes between four frameworks for thinking about bodily exchanges in medicine: those of property rights, heroic gift-giving, sacrifice, and gift-giving as aporia. These frameworks represent four different ways of making sense of donation of organs as well as tissue, gametes and blood, draw on different conceptions of the relations between the self and the other, and bring out different ethical issues as core ones. The article presents these frameworks, argues that all of them run into difficulties when trying to make sense of reciprocity and relational interdependence in donation, and shows how the three gift-giving frameworks (of heroism, sacrifice and aporia) hang together in a critical discussion about what is at stake in organ donation. It also presents and argues in favour of an alternative intercorporeal framework of giving-through-sharing that more thoroughly explicates the gift metaphor in the context of donation, and offers tools for making sense of relational dimensions of live and post mortem donations.

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confidence: 99%

Neither property right nor heroic gift, neither sacrifice nor aporia: the benefit of the theoretical lens of sharing in donation ethics

Zeiler

2013

Med Health Care and Philos

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“…The proposed integrated framework combines the bundle of rights approach to property (despite the criticisms and difficulties associated with that approach as shown below) with the analytic framework advocated by Calabresi and Melamed 1. Accordingly, the first step in this integrated analytic framework is to engage with themes such as the meaning and justification of property in excised body parts, a distinction that is often overlooked in some relevant and interesting commentary on the subject;2 the second step explores the potential role of liability rules 3. In the final step, the legal analyst decides, in light of justice, policy, efficiency and distributional goals, whether property or liability rules should govern the decision in a particular case involving body parts.…”

Section: Body Parts and Property Theory: Outline Of Analytic Frameworkmentioning

confidence: 99%

“…Wall, on the other hand, recognised and explored the distinction between property and ownership, but argued that the existence of ownership, even full liberal ownership, in a resource would not qualify that resource as property unless and until it has been categorised as such after the application of trespassory rules. Thus, Wall observed that ‘ownership is a necessary but insufficient condition of property, and it is thus an insufficient account of property merely to apply Honoré's account of ownership’,22 and that ‘Honoré provides a theory of ownership and to have recognised ownership interests in an object or resource is not the same as that object or resource being property’23 (Italics in the original) This presupposes that although I might be the legally recognised and acknowledged owner of ‘X’ (my house) because of my significant ownership interests in it, yet these significant ownership interests in X might not be categorised as a property right if, for instance, the government decided to compulsorily acquire X and pay me some statutorily determined, non-market-based, compensation. In other words, the application of liability rules as a remedy for the compulsory acquisition of X above indicates that I have no property right in X even though I was the acknowledged owner .…”

Section: Does ‘Property’ Include Body Parts or Rights Over Body Parts?mentioning

confidence: 99%

Body parts in property theory: an integrated framework

Nwabueze

2013

J Med Ethics

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The role of property theory as a framework for analysis and regulation of body parts has become a debate of topical importance because of the emergence of biomedical technologies that utilise body parts, and also because the application of the concept of property, even with respect to historically and traditionally accepted forms of property, raises serious challenges to the property analyst. However, there is another reason for the topicality of property in relation to body parts: a proprietary approach confers on a claimant the advantage of continuing control that is tellingly lacking in non-property frameworks underpinned, for instance, by consent, negligence, privacy and unjust enrichment rules. In some circumstances, such as an unauthorised blood test performed on a blood sample obtained with consent, the continuing control provided by property law might be the only chance a claimant has to obtain a remedy. Economy of space, however, requires that only a prolegomenon on body parts and property theory is given below. Thus, the analysis begins by providing in outline a framework for comprehensive analysis of body parts within the realm of property theory; thereafter, the author engages with the normative question of whether body parts or rights exercisable over body parts could be admitted into the category of property.

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“…These are examples of controlled but non-proprietary things. As has been explained elsewhere,10 ownership (a functional relationship) is a necessary but insufficient condition of property (a legal relationship); the application of property rules is needed in addition to a set of ownership entitlements for there to give rise to a property right. Ownership itself is insufficient because the law does not protect ‘ownership’ per se, it protects propriety rights, statutory rights, rights of privacy and bodily integrity and relationships of trust and confidence.…”

Section: The Dimensions Of Property Lawmentioning

confidence: 99%

The trespasses of property law

Wall

2013

J Med Ethics

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The purpose of this article is to identify a limit to the appropriate application of property law to the use and storage of bodily material. I argue here that property law ought to be limited to protecting 'contingent rights' and that recent cases where property rights have been recognised in semen represent the application of property law beyond this limit. I also suggest how the law ought to develop in order to avoid the overextensive use of property law.

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The Legal Status of Body Parts: A Framework

Cited by 16 publications

References 0 publications

Neither property right nor heroic gift, neither sacrifice nor aporia: the benefit of the theoretical lens of sharing in donation ethics

Neither property right nor heroic gift, neither sacrifice nor aporia: the benefit of the theoretical lens of sharing in donation ethics

Body parts in property theory: an integrated framework

The trespasses of property law

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