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Copyright Information
MedicalLaw International,1998, Vol. 3, pp. 299-317
0968-5332/98 $10
© 1998 A B Academic Publishers-Printed in Great Britain

'I, ME, MINE': BODIES, PARTS AND PROPERTY*

ANDREW GRUBB**

ABSTRACT

The idea that human bodies and their parts are 'property' has traditionally found
little support in English law. By contrast, philosophers have mused at the prospect
of persons owning themselves and the justice of self-ownership and its implications
for the product of a person's labours. There are signs that the common law may be
prepared to recognise that parts of a body are 'property' and subject to control by
their source or another. In the recent case of R v Kelly, the English Court of Appeal
decided that parts of corpses held as anatomical specimens were 'property' and
could be stolen. The impact of the court's view may be considerable in respect of
tissue and parts held by medical or other institutions for research, storage, archival
or transplantation purposes; conferring legal protection where otherwise there
would be none. What, however, of body parts or tissue taken from living persons?
Is this 'property' and, if so, who has "rights" over it? The implications are
considerable for patients and others, particularly researchers where commercial
exploitation is envisaged.

I. PROPERTY: SYSTEMS AND RULES

We all know what it is and we all have some; some people, however, have
more than others. We can recognise it when we see it. Many crave for
more and strive for most of their lives to achieve this. What am I talking
about? Of course, I am talking about 'property'.
My concern here is to tease out the extent to which a person may be
said to have "property" in his body or its parts. The contemporary
importance of this issue is not just theoretical.1 There are many significant
practical applications and problems .2 Who may claim control of excised
tissue or organs taken from a person? What "rights" do those who acquire
such tissue have? Is an organ in transit between donor and recipient
beyond the law's protection such that it may be taken with impunity by
anyone or everyone? If the tissue is commercially valuable who is entitled
to the profit? Is it the source, the researcher who "improves" the tissue, or
both? What use may be made of a dead body and its parts and who has the

*This paper was delivered as a lecture at a conference held at the Royal College of
Surgeons' of Edinburgh on "The Future of Medical Law and Ethics" on 31 October 1998.
**Professor of Medical Law, Cardiff Law School, Cardiff University, UK.
say so on that? Are anatomical specimens or other medical exhibits (like
the organ in transit) beyond the law's protection from interference?
English law has developed in the last decade to provide significant
protection to individuals' self-determination - by recognising a 'right of
bodily integrity' - such that the taking of any tissue from a competent
adult person would be unlawful without the consent of the source.3 The
law is, however, solely concerned with the "taking" rather than the "use"
of extra-corporeal organs or tissue.4 By contrast, property law would have
something to say about subsequent "use" and "control". Likewise there
are statutory regimes that set out legal frameworks for the use of dead
bodies for anatomical purposes5 or for the taking of organs and tissue for
transplantation, teaching or research purposes. 6 While these statutes do
have something to say about "use" of the material, they are not
comprehensive in their coverage, particularly in relation to "control" of
the excised material. Again, property law may offer sensible solutions.
But is it relevant here?
The philosophical 7 and legal8 literature on the nature of "property" is
immense and rich. Here, by way of context, it is enough to understand the
central notions - the language and vocabulary if you like - of the
institution of "property" in order to ponder its application to the human
body. Property is a "legal and social institution governing the use of most
things and the allocation of some items of social wealth". 9 Every western
society has a system of property and a legal system that allows for its
enjoyment, its transfer and to permit control over it to the exclusion of
others. 1 In general, one can say that the rules of private property operate
to distribute in society those resources which are valuable and for which
there is greater demand than supply. They assign to individuals rights in,
and over, these resources. The importance of property to societies is
signified by the fact that historically property laws have featured more
prominently in western legal systems, particularly English law, than say
have laws relating to the person. Clarity, comprehensivness and certainty
have been the key features that property law systems have strived for.
English law's rules are immensely complex and diverse and often rooted
in their medieval legal origins. We distinguish between real property
(land in effect), personalproperty (tangible things such as chattels and
intangible things such as debts or other choses in action) and intellectual
property (for example, patents and copyright). 1
It is, however, important to understand the notion of 'property' in
English law. It is used in two senses: one descriptive of the "thing" itself,
the other of an individual's relationship with the "thing". A statement to
the effect that "apples, dogs, books and land are property" illustrates the
first usage. Contrariwise one could state: "ideas, human beings and
information are not property". These statements tell us nothing about the
relationship of the "things" with any individual or group of individuals
and, in particular, the law's position on that. It is the second sense of
property that serves that function. Thus, we might use language which
asserts 'rights' over the "thing" in question: "That apple is mine", "I own
Rover, the dog" and "I am the tenant of that flat or its my freehold you are
talking about". The latter - like "John is in possession of the book I loaned
him" - demonstrates that more than one person my assert "rights" over a
"thing" and hence claim that they have "property" in it. We could say "I"
own the book and "John" has possession of it. Both describe a relationship
with the book and both legal notions may, in fact will, give rise to rights
over the book, albeit that they will be slightly different.
Concurrent and relative claims to "property" in a thing, especially if
it is land, are very common in English law. We describe individuals as
owning property, by which we usually mean exercising complete (or near
enough) dominion over the thing. 12 We also speak of individuals being in
possession of property.13 Whilst an owner may well be in possession of a
thing, others may possess property, be entitled to enjoy it and look to the
law's protection against interference with that enjoyment. In other words,
possession may entail "property" interests over a thing, albeit of lesser
kind (relatively speaking) than is attached to ownership. In fact, English
law, unlike civilian systems, pays little heed to the notion of absolute title
(or dominion) and is more concerned with protecting the "rights" of a
possessor; only usually bothering about ownership as a 'trump' in
disputes with other less entitled possessors.
"Property" in the sense of describing the relationship between a thing
and an individual generates a range of legal rules governing the
relationship. There is no definitive catalogue which can be drawn up but
one might offer the following as plausible categories of rules describing
the 'thing-person' relationship.14 First, there are what might be termed
user entitlements; rules which allow a person to exploit or enjoy the thing
perhaps even commercially. Secondly, there are rules conferring
exclusionarycontrol over the thing. Trespassory rules preventing others
dealing with the thing: exemplified by the call to "stay off my land" or
"leave my dog alone". Thirdly, there are rules conferring dispositional
liberties, allowing transfer by, for example, gift or selling. All of these
are, in some part at least, essential requirements for an individual to have
"property" in a thing. However, they do not necessarily mean that the
rules have the same content when applied to different individuals in
relation to the same thing. So, in the example where "John is in possession
of my book" because I have loaned it to him, John has the current right to
enjoy my book (a user entitlement) and he also has the right to prevent
others (apart from me) from interfering with that entitlement by virtue of
his lawful possession of the book (exclusionary control). He does not,
however, have the ability to lawfully transfer the book to another. I,
however, do not have a current user entitlement because I have
temporarily exercised my dispositional liberty to loan by way of bailment
my book to John. I can, however, by virtue of my ownership of the book
decide to transfer the book to another by gift or sale. I can also chose to
consign the book to the rubbish tip or simply destroy it.
Equally these types of rule do not mean that the rules bear the same
content when applied to different "things". Hence, there may be limitation
rules which restrict the person's "user entitlement", for example, the law
of nuisance, planning laws, laws prohibiting cruelty to animals or which
allow for compulsory expropriation of the property. There may be rules
which limit an individual's ability to dispose of the thing, for instance, by
restricting sales and allowing only transfers for non-value or, in
exceptional circumstances, preventing alienation altogether, although this
is rare.15

I. PROPERTY: THE HUMAN BODY

Does an individual have any "property" rights in or over his body or its
parts or tissue derived from it? Can anyone else acquire "property" over
another's body, its parts or tissue derived from it? Upon the answers to
these questions may turn whether a person can control the use of his tissue
or body parts; his ability to share in any commercial exploitation of his
genetic material; and the rights of others to protect the body parts and
tissue from interference by others. The questions are particularly
important today as developments in the medical and other sciences
increasingly permit and create therapeutic uses for human bodily material.
The demands for scientific study on body samples and the storage and
archiving of tissue and fluids have focused attention on who can control
and exploit the material. Anatomical specimens exist in museums and
medical exhibits can be found in hospitals and elsewhere. The questions
are, in themselves, not new. Indeed, the problems of "body ownership"
have existed for sometime as body material has long been useful. The first
kidney transplant was in 1954 but corneal grafting occurred earlier and it
has been claimed that successful bone transplants were carried out as early
as the late 19th Century.1 6 Blood transfusions date back to the 17th
century. 17 Even longer, scientists and doctors have used dead bodies for
the purposes of teaching and studying anatomy. 8

1. Body OwnershipLanguage

It is a commonly felt connection that all that is "I" is also "Mine" and
somehow belongs to "Me".19 Equally, the sense of 'it's mine' continues
even after a body part or tissue has been taken from an individual. Who
can forget Tony Hancock's indignant assertion when he said in the Blood
Donor:
"Well of course it's got something to do with me, it's my blood ... Well all
right - was. But you can't expect my interest in it to cease just because
you've got it."

The language of "body ownership" is part of everyday speech and

culture. Tony Hancock's diatribe exemplifies that. We are all familiar
with the self-assertion to another of: "It's my body and I'll do what I want
with it" or "You don't own me!". Jim Harris has argued that this is no
more than rhetoric and we do not actually mean what we say; anymore
than we would, if asked to explain, say that "this is my child" is to assert a
property interest in a son or daughter.20 It is, instead, really about asserting
a freedom to be left alone - a personal, rather than property, right -
reflected in the law requiring consent to a touching. Nevertheless, some
political philosophers have argued that individuals do have "property" in
their bodies which they, as a result, own. The arguments date back to such
philosophical luminaries as John Locke21 and John Stuart Mill. 22 They
have done so, largely, to argue for rights over the so-called "fruits of
labour" such as work. The argument of self-ownership is based upon the
follow line of reasoning: if an individual is not a slave (and none of us is),
nobody else owns my body, therefore I must own myself and everything
23
that it produces. As Jim Harris explains:

"Starting with the premise of self-ownership, ownership of the fruits of

my labour follow automatically. My body is the tree; my actions are the
branches; and the product of my labouring activities is the fruit."

A number of modern philosophers have followed the Locke/Mill

line 24 and some, most famously Robert Nozick, have taken it further to
develop a liberal attack on taxation and redistribution of wealth as being
an unjustified assault upon an individual's self-owned "labours". 25 The
premise explicit in this view has been criticised as a "spectacular non
sequitur": just because I am not a slave and nobody else owns me, does
not mean that I do.26 Whatever the results of the philosophical musings,
the law is otherwise. Not only does no-one else own my body, neither do
I. Legal conceptions of "property" do not extend to ownership of another 27
or self-ownership. This is not to say that a person cannot assert property
interests in parts or tissue that were part of his body or that property
interests cannot be claimed over a dead body or its parts.

2. English Law So Far

English law is a bit thin on the ground when it comes to the question of
28
property in a human body or its parts.
(a) Legislation: Certainly legislation exists in some areas which gives
individuals power over their bodies or parts which has some of the hall-
marks of "property". For example, the Human Tissue Act 1961 allows a
person to indicate before his death that he wishes parts of his body to be
used after his death for therapeutic purposes or for the purposes of
medical education or research. 29 While this gives him some dispositional
control on his body (and parts) after his death the Act only allow him to
"request" it; ultimate control is vested in the person "lawfully in
possession" of the body who must decide whether to authorise the dona-
tion in accordance with the deceased's wishes. Likewise, the Anatomy
Act 1984 allows a similar request, but again subject to the same limita-
tion, to be made for anatomical examination. These are hardly ringing
endorsements by Parliament of the "property" approach. Similarly, the
Human Organ Transplants Act 1989 and section 25 of the National Health
Service Act 1977 are not entirely satisfying for the pro-property argu-
ment. Both seem to assume that organs and blood are "property" to the
extent that sale is prohibited and permitted respectively by the two Acts.
The clearest piece of legislation is, perhaps, the Human Fertilisation
and Embryology Act 1990. In creating a regulatory regime for most kinds
of assisted reproduction and for embryo research, the Act deals with the
rights of gamete providers to control the use of those gametes or any
embryos created by them.30 In America, the courts have been asked to
resolve disputes about the disposition of gametes and embryos. 3 While
the former have been seen as "property" over which the progenitor may
exercise control, 32 the latter have not although this did not prevented the
court seeing the gamete providers as having the rights of control because
of their natural investment in their genetic material. 33 In England, the 34
courts have not considered the status of human reproductive material.
The 1990 Act, effectively, deals with it by vesting dispositional control in
the gamete providers whose "effective consent" ie., written consent must
be obtained for their use.3 5 Thus, an aspect of a "property" interest in a
"thing" is present - dispositional control - but it is difficult to see a set of
"rights" over embryos that come close to anything other than a quasi-
property interest in embryos and sperm.

(b) Case Law: If legislation is not particularly helpful, the case law is
even less persuasive of any settled position. As we shall see shortly, the
courts claimed that at common law there was 'no property' in a corpse or
in its parts. As regards parts (or tissue) removed from a living person, in
three cases, courts have assumed that urine, 36 blood 37 and hair 38 were
''property" (in the first sense used above) that could belong to another and
thus "property" (in the second sense above) that could be stolen. The
difficult legal point was, however, assumed or ignored rather than
39
decided.
The 1990 Californian case of Moore v Regents of California4°
provoked considerable interest and concern in England.41 The case
involved a patient who claimed that his doctors had taken tissue from him
that was unnecessary for his treatment and they (together with a bio-tech
company) had created an immortal cell-line which, it was alleged, was
worth about $3 billion. He sued for a share of the profits based upon a
number of actions, including battery and negligence (for failing to advice
him of what they were doing), as a breach of fiduciary duty (for creating a
conflict of interest) and for conversion on the basis that the excised tissue
was his property. The court allowed his action to proceed on the informed
consent and fiduciary duty bases but not on the basis of the "property"
claim. A majority of the California Supreme Court concluded that the
excised tissue and the Mo-cell line (named after him) were not something
over which he could claim any property rights. The court left open
whether the researchers could make such a claim: they already had
patented the cell-line they had invented.
In England, concern as to how a court might approach a similar case
in this country provoked academic discussion 42 and lead to a Report of a
Working Party of the Nuffield Council on Bioethics.43 Its proffered
solution was to resolve all the legal issues of "taking" and subsequent
"use" by seeking or assuming the consent of the source of tissue. The
Report has been roundly criticised on a number of fronts for its "eclectic"
and "ad hoc path" in offering a public policy solution, mixing 'property'
and 'non-property' analyses of what occurs when tissue is taken from a
person.44
In the result, there remains no clarity on the central questions. First,
does excised tissue fall within the property regime at all? Secondly, if it is
does, who is entitled to claim "property interests" in it? Is it the source or
the remover? It could be argued that the source has a 'natural property
right' in the products of his body which gives him 'first claim' .4 An
alternative might be that the remover acts as the source's agent and
thereby the source becomes entitled. 46 Equally, it could be argued that the
tissue is a res nullius which falls under the control of the person with first
occupancy in other words, the remover. 47 The minor premise48 is correct
but the major one is doubtful. 49 Thirdly, if the source has the "property
interests", he could then transfer them to the remover by way of "gift"
which is unlikely without evidence of an explicit intention to do so or by
abandoning the property giving the first possessor, thereafter, namely the
remover, the best rights over it.50 The difficulty with this approach is that
it may be difficult to show that the patient intends to abandon his tissue,
particularly if it is to be put to a controversial or commercially
advantageous use. The Nuffield Council 's view is problematic in that it is
not clear whether English law accepts at all the notion of 'divesting
abandonment' outside of a number of specific situations (eg, theft and
wrecks) and, if it does not, the patient would always be able to reassert his
property interests at a later date should he so choose. 51 Fourthly, there are
immense problems in a case like Moore where the property is changed in
character by the work of the remover. Remember the cell line was both
physically different from Moore's original cells and only existed because
of the considerable skill and work of others. Who may assert proprietary
over this new property? Is the situation one of "accession" where the
source retains property rights?52 An example would be where a new
headlamp is added to a car: ownership of the headlight accedes, and is lost
to the owner of the car.53 Or is this an example of "specification" where a
nova species is produced and it seems that the specificator (ie, the
researchers) acquires all proprietary rights over the 'new' property. 4 Even
if the latter is the case in English law, the remover may remain liable for
converting the source's property (if that what it be) prior to the
specification. The calculation of damages for conversion, including what
account is to be taken of the "improvement" (ie that which generates the
profit), is difficult 5 and has been said to be "anyone's guess".5 6 This is not
to say that the court might not entertain an equitable distribution were an
account of profits sought.57
In the result, it is difficult to be clear about any aspect of English law
in relation to property questions in respect of parts taken from a living
person.

III. STEALING BODY PARTS OF THE DEAD

By contrast, where the person is dead some clarity has been achieved by
the case of R v Kelly and Lindsay58 in 1998.

1. The Decision

The appellants were convicted under the Theft Act 1968 of the theft
of up to forty anatomical specimens from the Royal College of Surgeons
in London. Kelly made use of the body parts in his work as an artist and
had persuaded Lindsay, a young junior technician employed by the
College to remove the specimens in return for £400. Kelly buried many of
the parts, which included three human heads, in the grounds of his family
home although some were recovered from Kelly's home and a friend's
flat. The appellants contended that under the common law body parts did
not constitute "property" capable of being stolen. Further, they argued
that the College had not been in lawful possession of the body parts since
the College had held the specimens for longer than two years without
burial, contrary to the terms of the Anatomy Act 1832, which governed
their possession. 59 The appellants further contended that they were not
dishonest since they acted on an honest belief that the specimens did not
lawfully belong to anyone.
The Court of Appeal upheld their convictions. First, there was a
common law rule that there was "no property" in a dead body or its parts.
However, the rule was subject to an exception where those parts have
acquired different attributes by virtue of the application of skill, such as
dissection or preservation techniques, for exhibition or teaching purposes.
In future cases the exception may be extended to include body parts with
a use or significance beyond their mere existence, even without the
acquisition of different attributes. Examples of this may include organs or
body parts intended for use in a transplant operation, for the extraction of
DNA or as exhibits in a trial. Secondly, the Royal College of Surgeons had
control and possession of the body parts within the meaning of the Theft
Act. There was no need to read an additional requirement of lawful
possession into the Act.

2. The 'No Property' Rule

Kelly is the first case in which an English court has held that parts of
a dead body may be "property" under the common law and hence, inter
alia, are capable of being stolen. The Court of Appeal held that at common
law that there is no property in a corpse. 6° This rule appears to date back to
1644 when Sir Edward Coke in his Institutes61 proclaimed that a cadaver
was nullis in bonis. Coke's view was followed by other classical writers
of the common law such as East, 62 Blackstone, 63 Hawkins, 64 Hale 65 and
Stephen. 66 Coke and the others almost certainly got it wrong. 67 Coke
seems to rely on Briton who was not referring to dead bodies at all but
rather to church-yards and other sacred objects. 68 East and Stephen refer to
Haynes's case 69 which held that a corpse could not own property rather
than it was not itself property. Also, perhaps Coke's statement should
have been limited to the buried corpse since he was concerned with caro
data vermibus ("flesh given to worms"). Buried corpses were protected
both by ecclesiastical law and the common law. As regaids the latter, it is
a common law crime to interfere with a buried corpse and remove it as
contra bonos mores.7° Likewise, since the dead body, once buried,
becomes part of the land, any deliberate interference with the body will be
trespass to land under the civil law. 71 Corpses awaiting burial are
obviously in a different position. However, the writers and judges drew no
distinction, sometimes relying on the supposed case of DrHandyside72 -
concerned with the body of a pair of dead 'Siamese Twins - which Paul
Matthews has shown never actually happened.7 3 In any event, thereafter,
the courts took Coke at his word, often literally repeating his account such
that the common law has come to accept, albeit largely through obiter
dicta, that, buried or not, and rightly or wrongly, the dead human body is
74
subject to the so-called 'no-property' rule.
Hence, the Court of Appeal in Kelly was correct in that, it is widely
accepted in England that a whole corpse cannot be stolen although, in
Scotland the position is otherwise before burial according to the High
Court of Justiciary in HM Advocate v Dewar." Even aware of the dubious
historical origins of the 'no property' rule for all corpses, the Court of
Appeal in Kelly was not prepared to reconsider that rule or contemplate
that it should not be applied in principle to parts of dead bodies stating: "If
that [rule] is now to be changed, in our view, it must be by Parlia-
ment ... ".76 Given the potential wide implications for executors, next of
kin and for the regime for transplantation if rights could be asserted over a
dead body prior to burial, the Court was, with respect, correct not to re-
write the general rule. A broad ranging legislative enquiry would be more
appropriate if change is contemplated.77 In any event, it may well be that
the exception to the rule adopted by the Court of Appeal (and its further
extension contemplated by the Court) obviates the need for change as it
will deal with those situations where the 'no property' rule gets in the way
of a sensible solution to a particular problem.

3. The Exceptions

It should not be thought that the effect of Kelly is that "property"

rights can never be asserted over a dead body or its parts. They can in two
circumstances - one of which arose in Kelly itself where 'work' and 'skill'
has been expended upon an excised body part. The other, of much longer
provenance, concerns the right of executors and administrators to the
body.

(a) The Right to Possess the Body for Disposal. While maintaining the
'no-property' in a corpse rule, English law recognises that certain
individuals have a duty to arrange for the disposal of a dead body by burial
or cremation. 78 The common law accepts as a concomitant to the duty that
the person has a legal right to possess the dead body for the purpose of
disposal. 79 This certainly includes the deceased's executor where a will
has been made8 ° or an administrator where the deceased has died intestate
and one has been appointed.81 It is unclear of the extent to which others, in
particular, the relatives of the deceased have a duty to arrange the disposal
of and right to possess the body. There is nineteenth century and modern
authority that a parent of an unmarried child certainly does.82 Likewise, it
has long been accepted that close relatives of a deceased have a right to
possess the body for this purposes.83 It may be, however, that the 84
independent duty (and concomitant right) of the relatives does not exist.
It is more likely that the obligation is based upon one of two other bases:
first, that the 'next of kin' may have actual possession of the body due to
the body being on their premises and there is nobody such as an executor
or administrator with a prior duty of disposal85 or secondly, (and it is
suggested this is more likely), as the person(s) next entitled to be
appointed the administrator of the deceased's estate under the Non-
Contentious Probate Rules 1987,86 ie, surviving spouse, children, parents,
siblings etc.87
The right of possession may even continue after burial so as to
restrain another seeking to disinter and rebury the deceased.88 It may even
be that infringement of the "right" gives rise to a claim for damages, for
example, for psychiatric injury where burial of the body is prevented or
the body is mishandles or mistreated in some way.89 However, the right to
possess is for disposal only. It is a limited "property" interest in the
deceased's corpse. Hence, it confers no other "property" entitlements
upon the relatives. In Dobson v North Tyneside HA90the next of kin of the
deceased sought to claim some "right" or "entitlement" over the
deceased's brain which had been removed during the course of an autopsy
and preserved in paraffin while the rest of her body was returned to the
family for burial. There main interest seems to have been to obtain
evidence relevant to the medical negligence action they were pursuing
against the hospital where the patient died. The brain, however, had been
disposed of also and so the plaintiffs sought damages. Her relatives
argued that they had a right of possession to the deceased's body
(including her brain) as next of kin which entitled them to sue in the
property tort of conversion. The Court of Appeal dismissed the action.
Peter Gibson U. stated that executors, administrators and others who
have a duty to dispose of a dead body have a right to possess it for that
purpose. Nevertheless, applying the well-known rule, he held that in order
to sustain a conversion claim the plaintiffs must have actual possession or
an immediate right of possession at the time of conversion. Even though
one of the plaintiff's (the grandmother) had taken out letters of
administration this was not until after the brain had been disposed of.
Therefore, her claim qua adminstratrix failed. Further, as regards all the
plaintiffs, even if they had a 'right of possession', it was solely for the
purpose of burial or cremation. That was not the basis upon which they
were asserting their 'right' in the instant case.
So, there we see the common law acknowledging a "property" right,
albeit of a limited nature, in the human corpse.

(b) 'Work' and 'Skill' or 'Sweat/Equity'. In the celebrated Australian

High Court case of Doodewardv Spence, 91 the plaintiff sought the return
of an exhibit which the police had seized. It was the preserved corpse of a
two-headed stillborn baby. The plaintiff claimed that he had "property" in
the exhibit and it was detinue (now conversion) to retain it against his
wishes. The High Court (by a majority of 2-1) agreed. Griffiths CJ, having
acknowledged
92
the general 'no property' in a corpse rule, created an
exception:
"when a person has by the lawful exercise of work or skill so dealt with a
human body or part of a human body in his lawful possession that it has
acquired some attributes differentiating it from a mere corpse awaiting
burial, he acquires a right to retain possession of it, at least as against any
person not entitled to have it delivered to him for the purpose of burial, but
subject, of course, to any positive law which forbids its retention under the
particular circumstances."

Griffiths CJ applied the exception so as to hold that the successor "in

title" to the preserved remains of a stillborn two-headed child had a
proprietary claim for its return from another who had taken it. The other
member of the majority, Barton J, decided that a stillborn child did not fall
within the 'no property' rule at all since it was not the corpse of a once-
live person. There was, therefore, no objection to seeing it as property
under the common law. He did, nevertheless, express his entire agreement
with the reasons of Griffiths CJ. 93 He did undoubtedly approve the rule's
application elsewhere (ie, where a corpse was involved) and he might
reasonably be taken to have approved the exception to the rule also.
Higgins J (dissenting) was more limited and his position is not entirely
clear. He accepted unreservedly the 'no property' rule but, arguably, he
also accepted the exception although on the facts he concluded that "[n]o
skill or labour has been exercised on it; and there has been no change in its
character. 94 Against this, it has to be said, that the thrust of Higgins J's
judgment is that the possession of anatomical specimens is illegal (though
not changed corpses such as mummies) because the parts (together with
the dead body) must be buried under the Anatomy legislation. 95
Doodewarddid not, of course, involve an anatomical specimen and thus,
the better view, is that Higgins J recognised the exception to the 'no
96
property' rule but thought it inapplicable on the facts.
In Kelly, the Court of Appeal accepted the approach of Griffiths CJ
in Doodeward and applied it to the anatomical specimens taken by the
98
defendants. 97 Rose U stated:
"parts of a corpse are capable of being property within section 4 of the
Theft Act, if they have acquired attributes by virtue of tdh, application of
skill, such as dissection or preservation techniques, f.: exhibition or
teaching purposes."

There is no doubt that the anatomical specimens in Kelly had

undergone considerable change by the expenditure of skill and were
preserved. Once accepted, the exception was properly applied. Four
observations about Kelly.
First, on one reading it could be said that the Court of Appeal was
concerned with "property" in the limited sense of a description of the
"thing". Well, of course, it was, but that would be too narrow a reading of
the decision. The court determined that the body parts were "property" in
that sense but further, were property over which the Royal College had
rights - to possess - which entitled them to exclude others from the parts.
This is "property" in the other sense I described earlier, looking to the
relationship between the "thing" and an individual.
Secondly, the exception in Doodewardand Kelly may be seen as a
reflection of the related philosophical arguments that an individual is
entitled to property rights where he performs useful work 99 or, what has
been described as the 'creation-without-wrong-argument'00 based upon
the views of Locke'01 and Mill. 10 2 In Kelly, this might work in the way it
was intended: to give the artificer, the Royal College rights over the parts
just as it did the original "worker" and his successors in Doodeward. But,
arguably it only did so because until that time in both instances there was
no "property" in either sense I have used it. Until then it was part of the
woman who gave birth to the stillborn child or of the corpses that were to
be subject to anatomical examination. Otherwise, in English law if
another had "rights" over the thing, the artificer would not extinguish
those rights, 103 unless he created a 'new thing' - the nova species of
specificatio. But even that, as we have seen, may not be correct and the
source may retain his proprietary interests subject to a claim in full for
conversion extinguishing themi° 4 Both Doodeward and Kelly may be
better explained as cases of "first possession" conferring property
rights. 10 5 The analogy would, in law, be with wild animals that a killed or
wild flowers that are cut, the "first possessor" acquires the rights over
them when previously there had been none.
Thirdly, there is considerable uncertainty about how the exception
should be applied. Will mere preservation do? 'Yes', according to
Griffiths CJ in Doodeward- nothing else had been done to the stillborn
baby. 'No', according to Higgins J. in that case and the Court of Appeal in
Dobson - where preservation ("fixing") was all that had occurred to the
body part (brain) there in question. In Dobson, Peter Gibson LJ
considered that the exception did not apply since the preservation of the
brain was not on a par with "stuffing or embalming a corpse or preserving
an anatomical or pathological specimen for a scientific collection or with
preserving a freak such as a double-headed foetus that had some value for
exhibition purposes" as had occurred in Doodeward.1 6 Leaving aside
whether Doodeward is actually different, what should be the crucial
indicia of the exception? It is not just a matter of what is done but also the
purpose for which the work or skill is deployed. There must be an
intention to create a novel item with a use of its own. It is the deliberate
creation of a novel item which justifies the common law in conferring
proprietary status on the "item" in order to give legal protection to the
artificer as reward for his expended effort; an argument which looks to
notions ofjustice, sometimes encapsulated in the so-called 'sweat/equity'
argument.
But should the exception go further? Griffiths CJ in Doodeward
specifically stated that his exception was not an "exhaustive enumeration
of the circumstances under which [a property] right may be acquired". 10 7
There are pragmatic reasons why the law should protect the "possession"
of a body part in some circumstances even where the possessor cannot
rely upon a "sweat/equity" argument to justify his proprietary interest. Of
course, the possession should not offend what Griffiths CJ in Doodeward
called "any positive law which forbids.. .retention under the particular
circumstances", such as public health or public decency laws.108 However,
where the "possessor" holds the part for a legitimate purpose recognised
by society as appropriate why should not the common law protect that
individual's possession such that he may prevent its taking by others and
obtain its return if taken unlawfully? In Kelly, the Court of Appeal
hypothesised that the common law might well develop in this way. Rose
LJ stated that body parts that "have a use or significance beyond their
mere existence" might be property for the purposes of theft even if they
did not fall within Griffith CJ's formulation in Doodeward,ie, they had
not acquired different attributes through skill or work. 109 The judge gave a
number of helpful examples, which, it is suggested, would fully justify an
expansion of the current exception: parts intended for use in an organ
transplantation operation, for the extraction of DNA or as an exhibit in a
trial.
This would, however, in effect re-write the 'no property' rule itself
such that it became: there is 'no property' in corpses (excluding excised
body parts). In the vast majority of instances, perhaps even all, there
would be little purpose in removing a body part from a dead body unless
the part was "of use" or was "significant" for some purpose. The
exception would now prove a new, and more limited, rule but there would
be nothing wrong with that since it would be entirely consistent with
modern demands on the common law and concerns about public decency
and public health.

IV. CONCLUSION

In this paper I have sought to show that the courts can consistently
with existing legal institutions provide remedies to those who de facto
have control of human bodies. They can do so by expansion of the
category of "property" in a descriptive sense and in a "relational" sense to
ascribe "bundles of rights" where necessary. The categories of property
are never closed or static and shift with societal norms.110 Of course, what
would be entailed in any given situation will need to be worked out.
Trespassory rights may well be crucial and, it is suggested, would follow
as a bare minimum under a proprietary regime. Equally, there will usually
be a need to create some dispositional liberties allowing transfer of the
rights to others. Whether these would extend to allow the power of sale or
commercial exploitation may depend upon the nature of the body
material.111 It is well within the grasp of the courts,11 2 let alone the
legislature, to make the hard decisions on these issues. Paul Matthews has
summed it up succinctly: 13

all the societal pressures which a century ago pointed away from lawfully
possessing and using human tissue now point towards it. The non-
property solutions of yesterday are inadequate to the task of today.

If the fear of commercial dealings is getting in the way of a

recognition of other property rights in parts of the body, it need not.

NOTES
1. See the papers collected in, K. Stern and P. Walsh (eds.), Property Rights in the
Human Body, 1997, Occasional Papers Series No. 2, Centre of Medical Law and
Ethics, King's College, London.
2. See, Nuffield Council on Bioethics Working Party, Human Tissue: Ethical and
Legal Issues (April 1995).
3. Eg, Airedale NHS Trust v Bland [1993] AC 789 (HL); Re MB (Adult: Medical
Treatment) (1997) 38 BMLR 175 (CA); St George's HealthcareNHS Trust v S
[1998] 3 All ER 673 (CA).
4. Cf, R v HFEA exparte Blood [1997] 2 All ER 687 (CA) ('taking' of deceased's
sperm governed by common law; 'use' governed by legislation).
5. Anatomy Act 1984.
6. Human Tissue Act 1961.
7. See, eg, J. Waldron, The Right to Private Property (OUP 1988); S.R. Munzer, A
Theory of Property(CUP 1990).
8. See, eg, J.W. Harris, Property and Justice (OUP 1996).
9. See, J.W. Harris, "Who Owns My Body" (1996) 16 OJLS 55 (hereafter "Harris").
10. See generally, J. Singer and J. Beerman, "The Social Origins of Property" (1993) 6
Canadian Journal of Law and Jurisprudence 217.
11. For a discussion of the important area of patent law, not covered in this papers, see,
L. Bently and B. Sherman, "The Ethics of Patenting: Towards a Transgenic Patent
System" (1995) 3 Med L Rev 275.
12. See, A.M. Honord, "Ownership" in Oxford Essays in Jurisprudence,First Series
(ed.) A.G. Guest, (OUP 1961) at 107.
13. See, D.R. Harris, "The Concept of Possession in English Law" in A.G. Guest (ed.),
ibid, at 69.
14. See, Harris, op cit at 59-62.
15. For a discussion see, S. Rose-Ackerman, "Inalienability and the Theory of Property
Rights" (1985) 85 Columbia LR 931.
16. See, R. Scott, The Body as Property (Allen Lane 1981), ch.1.
17. See, R.M. Titmuss, The Gift Relationship (LSE Books 1997) (ed.) A Oakley, ch.5.
18. See, R. Richardson, Death, Dissectionand the Destitute (Pelican 1988), ch.2.
19. For an overview of the notion of "I" and personal identity see, J. Glover, I: The
Philosophicaland Psychology of PersonalIdentity, (Penguin 1988).
20. Harris, op cit at 62-5.
21. J. Locke, The Second Treatise of Government,J.W. Gough (ed.) (Blackwell 1976).
22. J.S. Mill, Principlesof PoliticalEconomy, in J.M. Robson (ed.), Collected Works
of John Stuart Mill.
23. Harris, op cit at 68.
24. Eg, H. Steiner, An Essay on Rights (Blackwell 1994). Cf, S. Munzer, op cit. who
distinguishes between an individual's personal rights in his body (dispositional
authority) and property rights (transferability) of a strong (to sell) or weak (to give)
kind.
25. R. Nozick, Anarchy, State and Utopia (Blackwell 1974).
26. Harris, op cit at 71-3.
27. See, Sommerset's Case (1772) 20 St Tr 1 (effectively abolishing slavery in UK) and
3 & 4 Will 4, c.73 (1833) (abolishing slavery in the colonies).
28. For seminal discussions see, P. Matthews, "Whose Body? People As Property"
[1983] CLP 193; PDG. Skegg, "Human Corpses, Medical Specimens and the Law
of Property" (1975) 4 Anglo-American LR 412.
29. Section 1(1).
30. A similar issue would arise in determining whether gametes were "products" for the
purposes of products liability laws: see, K. Stern, "Strict Liability and the Supply of
Donated Gametes" (1994) 2 Med L Rev 261.
31. See, generally J. Robertson, "In the Beginning: the Legal Status of Early Embryos"
(1990) 76 Virginia Law Review 437 and "Posthumous Reproduction" (1994) 64
Indiana Law Journal 1027.
32. Hecht v. Superior Court (1993) 20 Cal Rptr 2d 275 (Cal CA).
33. Davis v. Davis (1992) 842 SW 2d 588 (Tenn Sup Ct) and Grubb (1993) 1 Med L
Rev 273. Cf, York v Jones (1989) 717 F Supp 421 (ED Vir).
34. For a discussion about how the courts might have approach the issues see, A.
Grubb, "The Legal Status of the Frozen Human Embryo" in Challenges in Medical
Care (ed.) A. Grubb (John Wiley 1992), 69.
35. Schedule 3.
36. R v Welsh [1974] RTR 478.
37. R v Rothery [1976] RTR 550.
38. Herbert (1961) 25 Journal of Criminal Law 163.
39. See, P. Matthews, op cit at 223-5.
40. (1990) 271 Cal Rptr 146 (Cal Sup Ct).
41. For a discussion from a non-US perspective see, B. Dickens, "Living Tissue and
Organ Donors and Property Law: More on Moore" (1992) 8 Journal of
Contemporary Health Law and Policy 73.
42. See, G. Dworkin and I. Kennedy, "Human Tissue: Rights in the Body and its Parts"
(1993) 1 Med L Rev 291, especially 306-314.
43. Human Tissue: Ethical and Legal Issues (April 1995).
44. P. Matthews, "A Man of Property" (1995) 3 Med L Rev 251 at 256.
45. G. Dworkin and I. Kennedy, op cit at 302-3.
46. P. Matthews, supra n 44 at 265-6.
47. Nuffield Council, op cit at para 9.11.
48. Blades vHiggs (1865) 11 HLC 621.
49. P. Matthews, supra n 44 at 269-70.
50. See, eg, Venner v State of Maryland (1976) 354 A 2d 483 (My CA).
51. See, A. Hudson, "Abandonment" in Interests in Goods (2nd edn.) (eds.) N. Palmer
and E. McKendrick (Lloyd's of London 1998), ch.23.
52. See, N. Palmer and A. Hudson, "Improving Stolen Chattels" in Interests in Goods,
op cit, ch. 36 at 931-5.
53. But, cf, Thomas v Robinson [1977] 1 NZLR 385. (no accession of additions because
they had not lost their separate identity and could be removed).
54. See, Borden Ltd v Scottish Timber Products Ltd [1981] Ch 25 and Re Peachdart
Ltd [1984] Ch 131. Though the position is not always straight-forward: see, N.
Palmer and A. Hudson, op cit; see also, P. Matthews, "The Legal and Moral Limits
of Common Law Tracing" in P. Birks (ed.), Laundering and Tracing (OUP 1995),
23 at 45-6.
55. N. Palmer and A. Hudson, op cit.
56. G. Dworkin and I. Kennedy, op cit at 313. See also, P. Matthews [1981] CLJ 340.
57. See, E. Scowen, "The Human Body - Whose Property and Whose Profit?" (1990)
1(1) Dispatches I at 2-3.
58. [1998] 3 All ER 741.
59. For other aspects of the case not discussed here: see, A. Grubb (1998) 6 Med L Rev
247 upon which this section is based.
60. For scholarly discussions see, P. Matthews, "Whose Body? People As Property"
[1983] CLP 193 (hereafter "Whose Body?") at 196-208 (buried corpses) and 208-
221 (unburied corpses) and PDG Skegg, "Human Corpses, Medical Specimens and
the Law of Property" (1975) 4 Anglo-American LR 412.
61. 3 Co. Inst. 203.
62. 2 East PC 652.
63. 2 B1 Comm 429.
64. 1 Hawk PC 216.
65. 1 HalePC515.
66. Digest of CriminalLaw (5th edn) 252.
67. See, P. Matthews, Whose Body? op cit at 197-8 and Griffith v Charlotte C & A RR
(1884) 23 SC 25 at 32.
68. Briton Folio 84b.
69. (1614) 77 ER 1389.
70. See, R v Lynn (1788) 2 TR 733 ('the resurrection men') and R v Sharpe (1856-7)
Dears & Bell 160.
71. 2. BI Comm 429 and Doodewardv Spence (1908) 6 CLR 406 at 412 per Griffiths
CJ. It may require, however, that a certain level of disintegration of the body has
occurred through decomposition: R v Jacobson (1880) 14 Cox CC 522.
72. 2 East PC 652 (1749) and 1 Hawk PC (8h edn 1824) 148.
73. P. Matthews, Whose Body?, op cit at 208-2 10.
74. See, R v Sharpe, supra at 163 per Erle J; Fosterv Dodd (1867) LR 3 QB 67 at 77 per
Byles J; Williams v Williams (1882) 29 Ch D 659 at 664 per Kay J; R v Price (1884)
12 QBD 247 at 252 per Stephen J.
75. 1945 JC 5. Although, the decision may itself be based upon a misunderstanding of
earlier Scottish precedents: see, P. Matthews, Whose Body? op cit at 200.
76. Supra, per Rose LJ at 749.
77. Cf, PDG Skegg, "Medical Uses of Corpses and the 'No Property' Rule" (1992) 32
Medicine, Science and Law 311.
78. In the US, a majority of courts have found that the family of the deceased have a
'quasi-property' right in the corpse for the purposes of burial: see, Brotherton v
Cleveland (1990) 923 F 2d 477 (6th Cir CA) at 480. Recent decisions have also
concluded that the next of kin have a constitutionally protected "property right"
which, if infringed may give rise to a claim in damages under Section 1983 (42
USC, s1983): see, Whaley v County of Tuscola (1995) 58 F 3d 1111 (6th Cir CA);
for a discussion of the case law see, T. O'Carroll, "Over My Dead Body:
Recognizing Property Rights in Corpses" (1996) 29 Journal of Health and Hospital
Law 238.
79. See, PDG Skegg, Law, Ethics, and Medicine (Clarendon 1984) at 232-5.
80. Williams v Williams (1882) 20 Ch D 659.
81. See, Holtham v Arnold (1986) 2 BMLR 123 (Hoffman J). For cases of dispute
between relatives see: Grandison v Nembhard (1989) 4 BMLR 140; Burnes v
Richards (1993) NSW Lexis 1339 (October 6) (Sup Ct NSW) (daughter and sister
versus common law husband); and Warner v. Levitt (1994) NSW Lexis 2115
(August 23) (Sup Ct NSW) (foster parents versus natural parents) and Calma v.
Sesar [1992] 2 NTLR 37 (father versus mother).
82. R. v Vann (1851) 2 Den 325 and R v Gwynedd CC exparte B (1991) 7 BMLR 120
(CA).
83. See, PDG Skegg, supra n 79 at 234-5.
84. It was recently doubted in Dobson v North Tyneside HA [1996] 4 All ER 474 at 478
per Peter Gibson U.
85. See by analogy, R v Stewart (1840) 12 Ad & E 773 and R v Feist (1858) Dears &
Bell 590.
86. SI 1987 No 2024, r.22.
87. See, Jervis on Coroners (eds.) P. Matthews and J. Freeman (1 1th edn.) (Sweet &
Maxwell 1993), at para 7-05.
88. See, Waldman vMelville (City) [1990] 2 WWR 54 (Sask QB).
89. See, eg, Gonzalez v. Metro Dade City Health Trust (1995) 651 So 2d 673 (Fla Sup
Ct). Doubting the claim in England, see A. Grubb (1996) 4 Med L Rev 216.
90. [1996] 4 All ER 474 and A. Grubb (1997) 5 Med L Rev 110.
91. (1908) 6 CLR 406.
92. Ibid at414.
93. Ibid, at 417.
94. Ibid, at417.
95. This is certainly a plausible interpretation of the Anatomy Act 1832 (which the
Australian statute mirrored) since it required that after 2 years the "body" be
interred (s. 13). There was no specific provision allowing the retention of any parts
and a failure to comply with s13 was a criminal offence (s18). It all depended,
therefore, what view one takes of a corpse without the particular missing parts.
Notice in Dobson, supra, the court assumed the body had been properly disposed of
by burial even without the brain (at 478 per Peter Gibson U). By contrast, the
Anatomy Act 1984 does contain provision for the retention of parts after an
anatomical examination is complete (ss5 and 6). For a discussion see, A. Grubb,
(1998) 6 Med L Rev 247.
96. For a discussion see, P. Matthews, Whose Body? op cit, at 212-4 and PDG Skegg,
"Human Corpses, Medical Specimens and the Law of Property" (1976) 4 Anglo-
American Law Review 412 at 418-20.
97. Previously in Dobson v North Tyneside HA, supra, the Court of Appeal considered
that it was arguable that the common law was such where "work" or "skill" had
conferred "attributes differentiating [them] from a mere corpse awaiting burial".
98. Supra, at 749-50.
99. See, S. Munzer, op cit at 251-91.
100. Harris, op cit at 67-8.
101. The Second Treatise of Government, op cit at 27.
102. Principlesof PoliticalEconomy, op cit at 230.
103. Falcke v Scottish ImperialInsurance Co (1886) 43 Ch D 234.
104. Torts (Interference with Goods) Act 1977, s5.
105. Blades v Higgs (1865) 11 HLC 621.
106. Supra, at 479.
107. Supra, at 414.
108. Ibid.
109. Supra at 750.
110. See, eg, the discussion and arguments offered in K. Gray, "Property in Thin Air"
[1991] CLJ 252.
111. For discussions about a 'market' in human organs or body parts: see, eg, L.B.
Andrews, "My Body, My Property" (1986) 16(5) Hastings Center Report 28; R.
Chadwick, "The Market for Bodily Parts: Kant and Duties to Oneself' in B.
Almond and D. Hill (eds), Applied Philosophy: Morals and Metaphysic in
317
Contemporary Debate (Routledge 1991); S. Wilkinson and E. Garrand, "Bodily
Integrity and the Sale of Human Organs" (1996) 22 Journal of Medical Ethics 334.
112. See, eg, A v C [1985] FLR 445 and [1985] FLR 543 (surrogacy agreement void).
113. P. Matthews, "A Man of Property" (1995) 3 Med L Rev 251 at 256.