Imogen Goold (University of Oxford – Faculty of Law) & Muireann Quigley (University of Birmingham) have posted Human Biomaterials: The Case for a Property Approach (in Goold, Herring, Skene and Greasley (eds) Persons, Parts and Property: How Should we Regulate Human Tissue in the 21st Century? ch 14, pp. 231-261) on SSRN. Here is the abstract:
In the course of making our case for a property approach, this chapter identifies and examines some of the problems that are caused by eschewing property. Recognizing that there are alternative legal approaches to dealing with the challenges posed by the use of human bodily materials, we examine whether property law provides the right and best mechanisms for dealing with these challenges.6 Using theft as the exemplar, we tease out how attempting to avoid a property analysis causes legal difficulties. Via this analysis, and that outlined in later sections, we elucidate the legal lacunae that resistance to according biomaterials the status of property creates. We also demonstrate that a property analysis best captures what occurs when bodily materials are donated, and consequently argue that the legal difficulties that can arise (and have arisen) when materials are donated are best addressed by mechanisms already in place to deal with interferences with chattels. Similarly, we argue that where biomaterials are damaged or lost, these harms are most fittingly dealt with as interferences with property, enabling those with an interest in the materials to obtain an appropriate remedy. We therefore make the overarching argument that a property approach ought to be favored because of the dearth of protections offered by other branches of law, and to this end offer an analysis that looks at how encompassing human biological materials within the ambit of a property system might work. We argue that using a property analysis to deal with removed biomaterials allows us to draw on the same rules we have already developed to manage relationships over a range of other things. This is helpful in relation to remedies, but has the wider benefit of providing a framework for clarifying and regulating the interests people have in relation to bodily materials. Such an approach need not be inflexible. Just as the rules of property law governing land, chattels and other objects differ in some regards, so too could we adapt property when applying it to human biological materials, retaining those characteristics that are useful or effective, and altering those that are problematic. We argue that on balance, such an approach would be preferable to a sui generis approach to biomaterials as it avoids the difficulties of creating a new scheme,7 while opening up already well-developed legal avenues that address conflicts over the control of corporeal objects.