
Property Rights in the Human Body (2013) - nwatson
http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-body/
======
nwatson
I was astounded to hear in the Radiolab podcast episode [1] that I do not own
my own body or its parts. (If you listen to the podcast, the section on
body/body-part ownership is just one of the several sections so you'll need to
look for it.) The legal systems in the UK, USA and elsewhere avoid the
question in part due to slavery's legacy.

The submitted article [0] and podcast episode [1] outline that generally it
appears:

* people have rights to sell their own blood and skin tissue (but not other body parts), but never had property rights over those materials in the first place

* companies that buy blood and skin, and who come to possess other body tissue, do under circumstances retain property rights over that tissue

* there are many strange corner cases with germ line cells, embryos, transplanted organs, etc.

One strange example from the podcast ... if you yourself withdraw your own
blood into a vial and store the vial at home, a person breaking into your home
that takes the vial of blood cannot be charged with theft of the blood itself
since it never was yours -- they may be charged with breaking and entering,
but not theft. On the other hand, if you sell your own blood to a company, and
then manage to take it back without permission, you are a thief since the
company has property rights over your blood.

The implications in the podcast were astounding ... the article does a decent
job discussing as well, but a transcript of that section of the podcast would
have been a better post (can't find one).

[0] [http://thestudentlawyer.com/2013/07/12/property-rights-in-
th...](http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-
body/) [1] [https://www.wnycstudios.org/story/asking-
friend](https://www.wnycstudios.org/story/asking-friend)

~~~
sharemywin
Property rights would be come a real slippery slope though. The right to
sell/rent your body. Sounds a lot like prostitution and slavery. How would you
delineate which parts you own and which ones you can't sell?

~~~
TomMckenny
The fact that I can not own parts of my body but an organization can, sort of
undermines any claim that the current rules exist out of fears of slippery
slopes to slavery.

~~~
deogeo
It's bizarre - if corporations are people, then surely the converse is true as
well?

~~~
menzoic
Roses are flowers. Not all flowers are roses.

~~~
salawat
Um... I think you just kind of fell down a set of logic stairs there amigo.

While your and GP posts were valid, this is a case of valid reasoning being
applied to unsound premises in that a corporation is not granted these
property rights through personhood, but via it's being a corporation.

This is one of the things that makes me spit every time I think of conceptual
train wreck that was Citizens United.

Corporations were not meant to be people. They were logical constructs with
just enough personhood to distinguish the economic institution from the people
making it up in the eyes of the law, such that higher risk ventures could be
more easily undertaken through pooling of resources, and distribution of risk.

That means, it is a false assumption to think of a corporation as Person+.
It's more a case of being a !Person.

Frankly, the entire idea of property rights sort of breaks down in light of
possession being 9/10's of the law w.r.t your own body. As a free agent, you
can do what you want. Just... Understand the additional risk brought on by the
legal system rapidly backpedaling away if you do something outside the few
clearly established guidelines, and other people with no interest in testing
potential legal waters that may destroy them will have very little in the way
of external incentive to help you do it.

One of the things most uncomfortable about a common law system is how
precedent in unrelated areas can composite together to create a law where no
intent to have such a thing was ever established.

------
rayiner
It’s not really that odd. Anglo law has several different areas of law, of
which property is one. Humans have special status, so things to do with people
and their bodies falls under the umbrella of torts. If someone punched your
dog, you sue them for trespass to chattels. (Because dogs are property.) But
if someone punches you, you don’t sue them for trespass to your body. You sue
them for battery, which is a tort especially for injuries to people.

------
molticrystal
>However, it was held that Mr Moore’s spleen was not his property so, while he
could claim for breach of fiduciary duty and a lack of informed consent, he
could not claim for the consequences of the conversion. It was the researchers
who were held to own the cell line over which they had been granted a patent
because of their application of skill to Mr Moore’s original cells.

That makes me wonder if skill is a defense and how one would demonstrate
skill. While many of the examples were international, this one was California
based, so I looked up what skill is in a legal dictionary with US examples:

>Practical and familiar knowledge of the principles and processes of an art,
science, or trade, combined with the ability to apply them in practice in a
proper and approved manner and with readiness and dexterity. [1]

So if you could demonstrate knowledge of the procedure and were familiar with
some equipment manuals, could you make a claim? If you lacked equipment and
resources, would that be a defense for the other side? About approved manner,
as there are biohackers, and the ability to work in other countries or perhaps
partner up with a licensed company, I wonder if any of those would work as a
defense.

[1] [https://thelawdictionary.org/skill/](https://thelawdictionary.org/skill/)

------
bookofjoe
"The test of whether or not you own something is whether you can sell it." I
can't remember where I read this or who said it, but it's a good rule of
thumb.

~~~
cazum
This test has some interesting edge cases though:

For example, I can own 200lbs of crystal meth, and when the police come to
arrest me for it, they will have no problem claiming I own it. But according
to this rule, I don't actually own the drugs because those same cops will
prevent me from selling it.

~~~
thaumasiotes
The cops will also be happy to take your meth as soon as they see it, so the
argument that you _do_ "own" it isn't that strong.

~~~
geggam
If you can prevent them from taking it do you own it ?

Seems your argument over ownership comes down to force ?

~~~
alasdair_
>Seems your argument over ownership comes down to force ?

ALL arguments over ownership come down to force.

This is how we wound up having nations - some group had more force than some
other group. It continues to this day - war exists as the most obvious example
of this but softer forces, such as the ability to demand and enforce sanctions
also count.

In a wider sense, ALL law comes down to force, since without the ability to
enforce(!) it, law is meaningless.

Put much more simply: people with nuclear weapons don't have to pay their
parking tickets.

~~~
bloak
> In a wider sense, ALL law comes down to force, since without the ability to
> enforce(!) it, law is meaningless.

I don't think that's true in any useful way. It's perfectly possible to create
rules and worry later about how to enforce them. Sometimes the only penalty
for breaking the rules is disapproval. In fact, that's quite common, both for
minor domestic offences and in international law. It doesn't make the laws
"meaningless"; they may still be very influential in various ways.

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MayeulC
> This is clearly an unsatisfactory situation for three key reasons: the woman
> wishing to be pregnant has been denied her chance of motherhood, the embryos
> have been destroyed and a considerable amount of money has been wasted.

This whole argument shocked me. I don't know if the author follows a logical
fallacy, or something else is at play, but first of all, I fail to recognize
how an embryo would be part of _your own_ body. Secondly, I really have issues
following her argumentation that consent from her then-partner isn't needed to
transfer and make use of the embryos.

The article then goes on to argue that very position, which seems to be a bit
out of place. I don't really follow the arguments that:

> Biologically, a man’s role is limited to the act of fertilisation and from
> that moment onwards, the woman bears the burden of gestation through to
> labour and child birth. Conferring ownership of the embryo to the woman
> could go some way to address this imbalance.

Given that for IVF, a woman's contribution to an embryo is exactly the same as
a man's (one gamete), and the _burden of gestation_ hasn't taken place.

~~~
justtopost
Given that it is not an independent entity, it is no different than a tumor
other than its division properties. You can take the argument either way.
Please leave your idealogical biases at home.

~~~
MayeulC
Well, I did try to leave any kind of bias aside, so my apologies if I didn't
succeed. I hope I didn't misunderstand you, but

> it is not an independent entity

This really is debatable, depending on the term "entity". Given that this is
in-vitro fertilization, an embryo here is likely a couple dozen cells grown
from two gametes, in a test tube. It is physically distinct from the parents.

My remark was going in the same direction as yours. What "schocked" me is that
some parts of the linked article read as though the author forced an
ideology/views upon the reader. I was expecting to get raw facts from this
article, so that surprised me a bit.

Regardless of what I think of the author's viewpoint (which I didn't state, by
the way), I expressed having trouble logically following the arguments that
are being used there, and suspected that it might be due to a logical fallacy
the author could have been leaning on to close the reasoning gaps (and if that
was the case, I was curious to know which). But I admit it could also be an
issue on my side.

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geggam
Sign a contract selling your body to an LLC you form.

Use the system against this madness.

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jf
Site is down, here's the most recent copy from the Internet Archive:
[https://web.archive.org/web/20180809061136/http://thestudent...](https://web.archive.org/web/20180809061136/http://thestudentlawyer.com/2013/07/12/property-
rights-in-the-human-body/)

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dmichulke
Your body is your property because only you are allowed to determine what
happens to it.

Now saying it's not property because it's special is like saying your car is
not your property because it's special (e.g. with respect to traffic law).

It can be both: special and your property.

The whole thing is a relic of a weird system of law.

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tedk-42
Incredible uninteresting and irrelevant. Doesn't deserve to be on HN.

If a hair falls off my body and onto the ground, does it count as littering?

