There is no Property in the Human Body
There are some prolific questions that exist in the entire field of law whether or not there is a property in the human body. Kezenski (2013) pointed out that under the conception of the law applied in many areas in the law, there can never be a commercial body in the dead the body. The interesting contentious issue is about whether the dead body posses the right of property or if it qualified to an interest of the property. Most of the discussion by the learned has focused on the R.S. Guerney opinion on the right of the dead in regard to property CITATION Har08 \l 1033 (Hardcastle, 2008). However, learned Gurney argued that the right of the dead body to property is the subject mostly from the responsibility, which lies on the closest relative to bury the dead. The human body, therefore, cannot be regarded as a property in any form whether dead or alive. In this case, it means that there is no property in the human body. This paper, therefore, analyzes the statement “there is no Property in the Human Body” in regard to the common law. The paper provides case studies regarding the common law and property to provide clear understandable discussion regarding the statement.
The traditional law regard the human body has valueless and upon death, the sources of the body have no right to the body. The administration has used such law to limit the rights of the next of kin to give a decent burial to the dead. Even taking possession of the dead has been difficult in the past due to the same law. The human body or corpses are regarded in the same as a lump of clay and other valueless things immediate a person is declared dead. The common law, which states that there is no property in the law, has also been used to justify several actions and used to deny the family of the deceased there right to give the deceased a decent burial However, the advanced technology has improved the value of the human body and it is no longer regarded as no property CITATION Ale01 \l 1033 (George, 2001). The body has some substances, organs, and human tissue. It is argued that as a result of biotechnology, the human body can no longer be regarded as valueless. For instance, the case of Moore v. Regents of the University of California 973 P2d479 (Cal.1990). In the case, the plaintiff allowed the doctors to remove his spleen during the treatment of cancer. While he agreed to the operation and the removal of his spleen, he did not give the doctors and research the right to use his tissue for research. In the case, it was declared that it was illegal to use his tissue for research without his consent and therefore, an argument of no property of the human body is an issue, which is about to be won due to advanced technology CITATION Gen17 \l 1033 (Dee, 2017). The legal issues regarding the case are whether the person has personal rights on parts of his body and tissue and therefore, there no property of the human body is applicable or not. And based on the case, it is evident a person has rights over part of his or body and therefore, the common law is challenged.
However, according to a popular lawyer Mr Guerney, there is no property in the dead body and not protected by the authority. It means that an individual has no right over his or her body and this declared every human part valueless CITATION Nei18 \l 1033 (Maddox, 2018). It is also translating that the dead body has no rights, and it is upon the court to declare what could be done with the body. The dead body is, therefore, depends on the ruling, which the court can make. This statement has been challenged by several previous rulings and with the advanced technology and recent discoveries in biotechnology; it would soon be invalid to declare that the body has no property value. In the case before the Supreme Court of Queensland (Re Cresswell  QSC 142), Justice Brown made a surprising ruling, which allowed Ms Creswell to use her last partner sperm to try to have a child. Mr Davies died on accident and it found when he had already donated his sperm to the sperm bank CITATION PDG92 \l 1033 (Skegg, 1992). With the help Davies' family members, Ms Creswell made an application to remove the sperm and used and the Judge gave an order. The ruling made by the judge confirmed two important facts about no property of the human body argument. First, it sustains that the next of kin has the right over the deceased body. Since Mr Davies did not indicate any resistance on the use of his sperm and the judge no choice but to allow his partner to use it for conceiving. The matter of fertility is upon the health professional to determine.
The declaration of the case that Ms Cresswell could use the sperm of her partner, confirmed that human body has value making the common law that there is no property of human body questionable CITATION JAM15 \l 1033 (EDELMAN, 2015). It also confirmed that the next of kin has right over the body of the deceased and through the court of law; the next of kin can obtain an order to bury the body and use any parts of the body as long as the deceased person never opposed such move when he or she was alive. It also means that the sperm can be property and therefore, can be legally owned under the common law CITATION Mar16 \l 1033 (Marusyk & Swain, 2016). In Queensland, there is no law that provides guidance on the use of sperm of the deceased person and therefore, the court had to make a decision based on the common law CITATION Naw64 \l 1033 (Nawrocka, 1964). In this regard, the court found it that the sperm was a property and it can therefore, Ms Cresswell can take the sperm of her partner and use for production purpose.
However, it is still illegal for anyone to use any part of his or her body for economic benefit. In the case of Moore v. Regents of the University Of California 973 P2d479 (cal.1990), the majority of judges agreed that using any part of the human body for financial benefit is illegal and therefore, by there is no property in the human body. It means that the Regents of California violated the law and the right of the patient CITATION The18 \p 23 \l 1033 (The Rule of Law Institute of Australia, 2018, p. 23). Based on the ruling of the judges, it is clear that the next of the use of any party or body for commercial purpose is illegal.
In conclusion, the common law "there is no property on the human body was derived to property the people from being enslaved. And based on several case studies, the technology has changed the use of the human body and therefore, can never be regarded as valueless. Under some circumstances the right of the next kin of the right of the person over his or her body tissues or organs. It is also essential to state that there is no property of the human body but some circumstances can force the situation to make a ruling which makes the human body be regarded as property.
BIBLIOGRAPHY Dee, G. (2017). The Supreme Court of Queensland has said a young woman can have a baby – why should you be interested? Journal of International Law, 12-38.
EDELMAN, J. (2015). PROPERTY RIGHTS TO OUR BODIES AND THEIR. http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/2795570/James-Edelman-Property-rights-to-our-bodies-and-their-products.pdf, 2-4.
George, A. (2001). Property in the Human Body and its parts reflections of self-determination in Liberal Society. http://cadmus.eui.eu/bitstream/handle/1814/172/law01-08.pdf, 5-38.
Hardcastle, R. (2008). Law and the Human Body: Book Review. Ontario: Hart Publishing, 2007.
Maddox, N. (2018). Property Rights in the (Fragmented) Human Body. Maymouth University Law review, 2-15.
Marusyk, R. W., & Swain, M. (2016). A QUESTION OF PROPERTY RIGHTS IN THE HUMAN BODY. https://commonlaw.uottawa.ca/ottawa-law-review/sites/commonlaw.uottawa.ca.ottawa-law-review/files/20_21ottawalrev3511989.pdf , 22 (2), 1-38.
Nawrocka, M. (1964). Is My Body My Property? 136 | Adam Mickiewicz University Law Review, 2-18.
Queenland, Supreme Court of. (2018). Re Creswell  QSC 142. https://archive.sclqld.org.au/qjudgment/2018/Summary_QSC18-142.pdf , 21 (4), 12-35.
Skegg, P. D. (1992). Medical Uses of Corpses and the ‘No Property’ Rule. Medicine, Science and the Law, 1-34.
The Rule of Law Institute of Australia. (2018). IVF and Legal Precedent – Re Cresswell Qld. https://www.ruleoflaw.org.au/ivf-and-legal-precedent-re-cresswell-qld/, 2-15.
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