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Law and the Human Body: Property Rights, Ownership and Control


ISBN13: 9781841139777
Published: April 2009
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback 2007)
Price: £35.99
Hardback edition price on application, ISBN13 9781841136011



Despatched in 4 to 6 days.

Do you own your body? Advances in science and the development of genetic databases have added an aura of modern controversy to this long-standing and, as yet, unresolved problem. In particular, English law governing separated human tissue (including body parts and cell-lines) is unsatisfactory. Despite the enactment of the Human Tissue Act 2004 UK, it remains uncertain what property rights living persons can claim over their separated human tissue. The development of clear legal principles is necessary so that individuals can have effective control over human tissue separated from their bodies whilst also enabling the efficient use of such materials in medical research.

Part I of Law and the Human Body traces the evolution of English, Australian, United States and Canadian law in relation to human tissue separated from living persons and dead bodies. This includes a comprehensive examination of the Human Tissue Act 2004 UK as well as prominent judicial decisions, including Re Organ Retention Group Litigation [2005] QB 506, Colavito v New York Organ Donor Network 438 F 3d 214 (US CA 2nd Circuit 2006) and Washington University v Catalona 437 F Supp 2d 985 (USDC Ed Mo 2006). Analysis demonstrates that, although property rights and non-proprietary interests in separated human tissue are recognized in limited circumstances, no principled basis has been accepted either at common law or by statute for the recognition of these rights and interests.

Part II of this book therefore develops and defends a principled basis in English law for the creation and legal recognition of property rights and non-proprietary interests in separated human tissue. Significantly, the analysis and principles presented in Law and the Human Body have application across common law and civil law jurisdictions worldwide.

Subjects:
Medical Law
Contents:
CHAPTER 1 INTRODUCTION
A Biological Materials and Scientific Research
1. Human Tissue Collections and Genetic Databases
(a) Tissue Collections
(b) Genetic Databases
2. Biological Materials
(a) Physical Manifestations
Genetic Information
B Legal Framework
1. Legal Status of Biological Materials
2. Proprietary Protection
3. Non-proprietary Protection
C Structure
PART I
CHAPTER 2 DEAD BODY
A No Property Principle
B Property Rights
1. Work or Skill Exception
2. Constitutional Protection
3. Tort of Wrongful Interference
4. Summary
C Non-proprietary Interests
1. Right to Possession for Burial
2. Quasi-property Rights
3. Statutory Rights to Possession
4. Protection under Tort Law
5. Solatium for Affront
6. Respect for Private and Family Life
7. Summary
D Conclusion
CHAPTER 3 LIVING BODY
A Slavery
B Rejection of Individual Property Rights
1. Moore v Regents of the University of California
2. Greenberg v Miami Children's Hospital
3. Washington University v Catalona
4. Summary
C Property Rights
1. Biological Materials
(a) Statute
(b) Common Law
(c) Summary
2. Cell-lines
3. Gametes
(a) Statute
(b) Common Law
4. Hair Clippings
5. Waste Products
6. Summary
D Non-proprietary Interests
1. Statute
2. Common Law
3. Summary
E Conclusion
CHAPTER 4 HUMAN TISSUE ACT 2004
A Human Tissue Act 2004
1. Consent Requirements
2. Exceptions to Consent Requirements
3. Prohibition on Commercial Dealing
(a) Original Clause 29
(b) Section 32
4. Non-consensual DNA Analysis Offence
5. Summary
B Conclusion
PART II
CHAPTER 5 PROPERTY RIGHTS
A Question
B Transformation of Biological Materials
C Creation of Property Rights
1. Work or Skill Exception
2. First Possession
3. Specification Doctrine
(a) Background
(b) Elements
(c) Application to Work or Skill Exception
(d) General Principle
D Conclusion
CHAPTER 6 CREATION AND ALLOCATION OF PROPERTY RIGHTS
A Property Principles
1. Detachment
2. Detachment plus Intention
(a) Judicial Support
(b) Intention
(c) Difficulties
3. Summary
B Application
1. Original Biological Materials
(a) Transfer
(b) Abandonment
(c) Remedies
(d) Summary
2. Additional Biological Materials
(a) Medical and Scientific Research
(b) Intellectual Property
(c) Specification and Accession
(d) Application
(e) Summary
C Conclusion
CHAPTER 7 NON-PROPRIETARY INTERESTS
A Protected Interests
B English Law
1. Autonomy
(a) Underlying Value
(b) Wrongs
2. Emotional Distress
(a) Definition
(b) Wrongs
3. Summary
C Developing Liability
1. Protected Interests
2. Conduct
3. Elements
D Conclusion
CHAPTER 8 CONCLUSION