Research Essay: Ownership and Control of Human Body Parts - MLJ711

This research essay delves into the complex legal landscape surrounding the ownership and control of human body parts, focusing on the Australian context. It examines the historical and contemporary perspectives on property rights concerning tissues, cells, organs, and genetic material removed from the human body. The essay explores the tension between individual rights, medical research, and commercial interests, analyzing relevant case law, legislation, and ethical guidelines. It discusses the challenges in defining ownership, the exceptions to the general rule against property disputes in human body parts, and the implications of the increasing use of human tissue in medical advancements. The essay also considers the application of property concepts, such as the right to possess and use, in the context of human tissue, ultimately aiming to provide a comprehensive understanding of the evolving legal framework governing this sensitive area.

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PROPERTY LAW AND POLICY
PART – 1 Question 1:
RESEARCH ESSAY
Introduction
If a tumor is removed from a human body by a surgeon or if a person gets fat sucked out
of his body by a cosmetic surgeon or if one has a tooth pulled-out by a dentist, one
would naturally presume that all these parts of the body are the property of the
individual from whose body these have been removed. Thinking that way is correct but
legally each of these individuals is wrong. According to the Australian law, no
individual remains owner of any part which has been removed from that individual’s
body and the individual cannot exercise any property rights on them.
Human body has two roles to play – Physiological and Pathological. Broadly, it can be
assumed that humans have hold over the Physiological portion and the Pathological
portion is under total control of the scientific fraternity, which includes scientists,
pathologists and research scholars. Now, also included in this list are hospitals, research
institutions and pathological laboratories. These are the entities which have unrestricted
access to the human anatomy. Now, the question which every human being on this
planet wants answered is – Who is the legal owner of the stored tissue and should the
scientific fraternity be allowed unwarranted access to it and if not, what laws should be
available to humans to have a control over their body parts?
There's no clear law to define who owns the extracted tissue which has been excised
from a body. The ongoing battle of U.S. patients having control over their body tissues
has given them the right to veto access to their tissue. The Australian Law Reform
Commission (ALRC) is also proposing to make issue testing without the patient's
consent an offence. This is a very significant and complex situation which is turning
into a form of novel dispute. The courts need to address the question about who controls

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the human body parts and these should include “tissues, fluids, cells, organs and all type
of genetic material within the human body and those which are removed from it1.
Although, both the High Court of Australia, and the US Supreme Court have principally
confirmed the rejection of patent claims by the scientific fraternity over human DNA as
a naturally occurring gene2, still, exceptions are there3. The Supreme Court of
California, in 1990 held that a hospital patient cannot have any proprietary right over
one’s discarded tissue and blood samples, the hospital could therefore exercise the right
of exploiting the economic potential to the detriment of the concerned patient4. In the
same context of holding proprietary rights on the DNA patents, the High Court of
Australia and the US Supreme Court did not clarify matters related to this issue and
ruled that those human genes, which are produced or manipulated by scientists in a lab
can continue to form the subject matter of a patent.
The Body and its Parts
In his famous book “My Body, My Property” noted thinker, activist and scientist L B
Andrews5 wrote that, and I quote “…the legal treatment of bodies and body parts
sounds suspiciously like property treatment”. Unquote.
National Health and Medical Research Council (NHMRC) plays an important role
through its ethical guidelines, particularly the ones related in prohibiting misuse of
tissue in context of medical research6. Although these guidelines are creating influence
in encouragement of ethical research practices, the lack of any legal recourse precludes
the controlling authorities to provide any enforceable resolution to conflicts of interest.
Hence, majority of individuals are left without a legal remedy against those persons or
institutions who are involved in the misuse of their tissue.
1 Stephen R Munzer, “The Special Case of Property Rights in Umbilical Cord Blood for Transplantation”
(1999) 51 Rutgers Law Review 493, 494.
2 Association for Molecular Pathology v Myriad Genetics, 569 US 576 (2013); D’Arcy v Myriad
Genetics Inc (2015) 258 CLR 334.
3 Munzer, n 23.
4 Moore v The Regents of the University of California, 793 P 2d 479 (1990).
5 L B Andrews, “My Body, My Property” (1986) 16 Hastings Center Report 28, 29.
6 National Health and Medical Research Council, National Statement on Ethical Conduct in Research
Involving Humans, NHMRC, Canberra, 1999.

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In Australia, the legal issue of human tissue use is being regulated by a piecemeal and
conflicting body of legislations and case laws7. These laws, which are being enforced by
different states under their separate Human Tissue Acts8, have been developed for
specifically dealing with various uses of tissue and in fact do not form a complete body
of rules which can be easily extrapolated to the fast emerging uses of tissue. One of the
weak link in these regulations is that they deal only with the consent to remove the
tissue, but do not deal with their subsequent use. Moreover, the laws only cover removal
of tissue for the purpose of transplantation, research and medical use. Whereas, the
usage factor is rapidly expanding, the legal cover to patients is only available for usage
in forensic laboratories and covers the collection, usage and storage of the tissue
samples.
However, the courts are developing a general rule, albeit slowly, against property
disputes in human body parts, although with some exceptions. A major exception is that
human tissue can become the property if it has been preserved through the use of skill or
work9. Although this rule and its exception10 has been recognized only in limited cases,
most of which concern with theft of tissue11, its application for access to test samples is
also being considered actively12. Increasing, use of human tissue is being made in
developing valuable therapeutic products.
7 The major cases dealing with property law and human tissue in Australia and the United Kingdom
are Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301;(1996)
4 All ER 474; Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; R v Kelly [1998] EWCA Crim
1578; (1998) 3 All ER 741 and Roche v Douglas as Administrator of the Estate of Edward Rowan
(dec’d) (2000) WASC 146.
8 Human Tissue Act 1985 (Tas); Human Tissue Act 1982 (Vic); Human Tissue Act
1983 (NSW); Transplantation and Anatomy Act 1983 (SA); Transplantation and Anatomy Act
1979 (Qld); Human Tissue and Transplantation Act 1982 (WA); Transplantation and Anatomy Act
1978 (ACT) and Human Tissue Transplant Act 1979 (NT).
9 Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406; R v Kelly [1998] EWCA Crim 1578; (1998) 3
All ER 741; Roche v Douglas as Administrator of the Estate of Edward Rowan (dec’d) (2000) WASC
146.
10 Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301; (1996) 4
All ER 474 and compare R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.
11 R v Kelly but compare R v Herbert (1961) 25 J CR L 163 and R v Rothery (1976) Crim LR 691, which
contain no mention of either the rule or the exception.
12 Roche v Douglas (2000) WASC 146.

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The situation is becoming untenable as the use of tissue and the interest held in it are
expanding fast, whereas legal system is failing in keeping pace with it. The only control
which the legal system has is the prohibition on those who buy or sell the human tissue
without processing it13.
Concept of Property
To determine whether human body parts can fit within the concept of property, it is
imperative that the following six factors are understood in their relevant context. The
explanations to these factors will not only show how far the issue of human body parts
can be fitted into a property system, but will also show how far it already has been.
1. Right to Possess
Whether an individual can exercise the right of possession over human body parts can
be better understood by the following discussion. All human body parts are tangible and
visible objects, whether they are in liquid form, such as blood or in solid form which
may include the organs or a piece of skin or an extracted tissue. This is so because all
the parts in the human body have specific shape and mass, they can be held physically
and can be controlled or altered, both with regard to their physical appearance and
attributable characteristics14. That they can be stored, preserved and transferred in their
existing or modified form also gives strength to the argument that human body parts
should be treated at par with property. It is also possible to exclude them from the body
and to place them in a secure container either for safe-keeping or for transporting15.
Specifically discussing about human tissue, in fact, is more amenable, as this forms
an integral part of all body parts and hence can be objectively related to the full
human anatomy.
13 Human Tissue Act 1985 (Tas) s 27; Human Tissue Act 1982 (Vic) ss 38, 39; Human Tissue Act
1983 (NSW) s 32; Transplantation and Anatomy Act 1983 (SA) s 35(1)(6);
Transplantation and Anatomy Act 1979 (Qld) s 35(1)–(6); Human Tissue and Transplantation Act
1982 (WA) s 29; Transplantation and Anatomy Act 1978 (ACT) s 44 and Human Tissue Transplant Act
1979 (NT) s 24.
14 Ibid, 113.
15 It is in this sense, as discussed above, that while each property interest is separable in theory, in practice
in many cases such a separation would be unworkable (although this will be dependent on the type of
object in which rights are held and how those rights are divided).

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The law has also started upholding these arguments for human body parts as with other
possessions and in certain cases courts have started taking cognizance of this as an
offence which interferes with possession16. Theft prosecution was enforced in the cases
of R v Kelly17, R v Rothery18 and R v Welsh19. These are recent instances where the legal
system upheld an individual’s right to possession. In case of Kelly, the court upheld
Royal College’s right of possession was recognised when it was found that Kelly was
stealing preserved body parts from the museum of the college. In Rothery and Welsh,
police after taking possession of the blood and urine samples, successfully defended
their right against interference from the source of tissue. These cases have been
instrumental in establishing that human tissue can effectively be used if possessed by
the correct authorities and often proves its worth when possessed, both in the real and in
the legal sense.
2. Right to Use
Use of human tissue is being made for centuries is an historical fact and it is
unnecessary to doubt about its uses. The individual’s right or privilege to uphold use of
human tissue can be best answered simply by looking at the vast array of its
uses20. Human tissue has been used for testing - in the pathological examinations; in
forensic procedures; for treatment of donated organs and for medical research.
Although many of the uses have legal sanction, it is more as a privilege rather than the
right to use. The various Human Tissue Acts being expiated have been designed
explicitly for the purpose of legalizing their specific uses, though they fail to achieve
this designated purpose. Even though transplantation of organs has been made legal, it
is in fact granting privilege to surgeons to use organs for treatment. On the same lines,
the National Statement of NHMRC (National Statement on Ethical Conduct in
Research Involving Humans) is in conjunction with the Human Tissue Acts when it
condones the use of tissue for research.
16 Government officials and police often have the right to enter onto land owned by an individual in
certain exceptional circumstances laid down by the law.
17 R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.
18 R v Rothery (1976) Crim LR 691.
19 R v Welsh (1974) RTR 478.
20 Quinn created Self, a model of his head, using his own, congealed blood as a work of art.

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Tissue use is hence, both possible and legally sanctioned, when police seeks blood
samples for forensic examination under the Crimes Act, 1914 (Cth)21 and law decrees
that individuals are also under a correlative duty of making available the samples as
stated under the various laws22.
3. Right to Manage
In Right to Possess and in Right to Use it has been established that control must remain
with the individual who owns the tissue. The natural progression of this chain then
comes to the issue of management and this creates a legal difficulty. Who should be
delegated the power of managing the human tissue? The owner cannot have it as they
are not technically qualified and a technically qualified person holding the power can
get distracted and may allow third parties to conduct research on the sample23. This will
start with testing and lead to storage as part of the research database or may even lead to
disposal of the sample. Unlike other properties, human tissue is difficult to manage in
case of a tussle on management power. In case, under legal supervision, if the individual
who owns the tissue is empowered to deal directly with a pathology laboratory for
conducting a genetic test on it and has enough legal protection to prohibit the laboratory
from allowing research to be done on the sample without owner’s permission24.
The ethical guidelines and the laws which regulate the use of tissue should be
enforceable in conjunction with the requirement of owner’s consent. Although the
various Human Tissue Acts put restrictions on the removal of tissue without consent,
these acts allow restricted use of the removal doctrine when tissue is to be used for
certain purposes, such as transplantation. In this sense, the NHMRC National
Statement can prove to a better restrictive tool, as it explicitly requires the use of tissue
samples only in accordance with the consent terms given by the individual who owns
the sample.
21 Crimes Act 1914 (Cth), Pt 1D; Crimes (Forensic Procedures) Act 2000 (NSW), Pts 3–8.
22 On situations where supply of blood samples is required by the law, see generally Australian Law
Reform Commission and Australian Health Ethics Committee, Essentially Yours, ch 39.
23 NSW Health Department, Test to Protect Your Baby (2000); South Australian Neonatal Screening
Centre, Screening Tests for Your New Baby (2002); Australian Law Reform Commission and Australian
Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in
Australia (2003) ALRC 96, 19.3.
24 Victoria Police and Genetics Health Services Victoria, Memorandum of Understanding, 23 January
2003; New South Wales Commissioner of Police and New South Wales Health Department,
Memorandum of Understanding, 17 April 2002.

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4. Right to the Income
Financial issues are the most difficult to manage when it comes to application of
property rights to the tissue debate. Generation of income from use of tissue can be open
to criticism. One of the reasons is that right of income is already in existence and is
being exercised under the law. This makes it clear that tissue, as a property, has the
capability to be subjected to a right to income. Difficulty arises when right to income
starts overlapping the right to use. The right to income can be controlled by legally
binding the owners, who are legally authorized to earn benefits from any use of the
tissue. The use can either be by themselves or through a third party authorized to use it.
This can be compared as income being derived simply by using something, such as
letting a house25. In the case of tissue, income can also be generated by allowing the use
of tissue for producing another valuable service or product. This is comparable to
selling of land for development purposes. Legal recourse should be implied against
exploitation of the property.
5. Right to the Capital
Transactions of Capital nature are definitely possible in case of tissue as are with other
forms of property. Like other properties, tissue can be transferred, as a whole, either by
Gift or by Sale. The owner can sell or gift tissue samples for research or other profit-
making activities. Under the prevailing Australian laws, tissue donation is considered as
form of transference and is being actively encouraged among donors. The largest area
covered under tissue donation is research. The volunteer participants allow the use of
their tissue to researchers, who then use them for their research studies. The researcher
is given full control over the sample, although adherence to ethical conditions is
compulsory.
In reality, a relationship of transfer is involved in all facets of tissue use once it has been
excised. In fact, the very reason for excision is to transfer the tissue permanently to the
end-user, especially after death and this form of transfer does not only have legal
sanctions, it is also being promoted through various social level organ donor programs
being conducted under the aegis of the Human Tissue Acts.
25 Honoré points out that under English tax law, rent-free use or occupation of a house is regarded as a
form of income. See Honoré, “Ownership”, 117.

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6. Right to Security
Under the Right to Security, it can be made legally possible in making tissue immune
from the act of expropriation, just like other forms of property have been made
immune26. However, this may cause interference in the currently prevalent practice of
excising tissues and organs from a deceased individual, where the deceased did not
express any dissent during his lifetime. Another area of concern relates to the prevailing
ethical practice of using those tissue samples which have been anonymized for use in
research. In such genuine cases, the course of law can be used for making certain
exceptions to the law of immunity, provided these practices are allowed to continue in
the interest of humanity. On similar grounds, crime investigating authorities should also
be given legal sanctions for appropriating tissue samples which are found at the crime
scenes or have to be taken from the suspects, provided such an exception is proved to be
in the interest of humanity.
Conclusion
The activist and social scientists have great expectations from the courts that the excised
human tissue should be declared immune from the arbitrary expropriation. In many
instances it has been found that technicians of pathology laboratories, research staff in
hospitals and independent medical researchers were doing their research work without
the fear of the results being claimed by others. However, in reality, such incidences of
organ and tissue use, when uncovered, have shown that the owners or close relatives of
a deceased individual have been incensed on finding that the tissue or body parts have
been excised without their consent27.
Appropriate action by the court in the case of Roche v Douglas as Administrator of the
Estate of Edward Rowan (dec’d)28, Supreme Court of Western Australia appropriated a
26 This is also demonstrated in government inquiries on the organ retention. See, eg, Witness statement of
Paul Bradley, WIT02290001, Bristol Royal Infirmary
Inquiry, <www.bristol-inquiry.org.uk/evidence/wit/WitSMent/witPBradley.htm> at 25 October 2005.
27 The distress people experienced following the revelations of organ retention appears to have been
considerable and widespread (Interview with Mary Dorcan, Retained Organs Office, Oxford Radcliffe
Hospital, (Personal interview, Oxford Radcliffe Hospital, 25 September 2001)).
28 (2000) WASC 146.

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tissue sample from Western Diagnostic Pathology. Although the action was bold, it can
be regarded only as a legal limitation on immunity issue29. Another example of law
preventing expropriation is in the case of R v Kelly30, where the court rightfully upheld
the security of the body parts preserved and held by the Royal College.
PART – 2:
LETTER OF ADVICE TO MARGERY PINK
22 April 2019
Dear Ms Pink,
Thank you for entrusting me your case related to dispute with John Blue. As was
discussed in that meeting, and as instructed by you, I am writing to confirm my
understanding of circumstances involving three claims made by John Blue and to
subsequently offer my advice to you with regard to the options available to you.
Executive Summary
I must point out to you that undertaking all or any specific parts of this suggestion being
given to you, does not, in any way, preclude you in following any other path of action.
It is only intended to inform you of the informed options which are likely to prove
beneficial to you and satisfy your interests. I suggest understanding a few key elements,
as listed below and explained further down in this communication, would help you to
focus on the claims discussed during our conversation.
Your Instructions - Pointwise
1. To understand your and John Blue’s interests.
29 Constitution of Australia gives the Federal Government power for “[t]he acquisition of property on just
terms from any State or person for any purpose in respect of which the Parliament has power to make
laws”. See Commonwealth of Australia Constitution Act 1900 (UK) s 51(xxxi).
30 R v Kelly [1998] EWCA Crim 1578; (1998) 3 All ER 741.

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It is very clear that you have Title Rights of the property and you are legally authorised
to take such action about the property which you think is best suitable in your interest. If
you want to fully demolish the building and reconstruct it as per your design, you have
full liberty to do so. As far as John Blue is concerned, he doesn’t have any legal
standing in obstructing your plans or to dictate you in matters of your estate31.
2. To consider a communication mode for furthering the negotiations.
Although John Blue is totally on the wrong side of the law and there is no need to argue
with him outside the court room, I am still of the opinion that amicable talks can lead to
amicable solutions and the costly and lengthy court procedure can be avoided32.
3. To explore relationship issues which may impede a successful negotiation.
Whatever may be the intent of John Blue, I would advise you to deal with him on
humanity grounds. It is a fact that, during the lonely and difficult days of your half-
sister Kim, he did help her, although in a very small way. Even after her death, he kept
his vigil on the house, tried his best to keep it neat and clean and wherever possible,
tried his best to keep the property safe33.
Adversities and Counter Actions
1) ADVERSE POSSESSION
The first demand raised by John Blue through his lawyer is about Adverse Possession
by you. Let me explain the legal status of this term and the many uses it finds in cases
related to real estate all over the world. Adverse Possession is commonly known as
‘Squatting Law’ in most parts of the world, especially in the UK and the USA.
According to Professor Cathy Sherry, who is property law specialist at University of
NSW, Adverse Possession is a very old doctrine of property law. She also stated that
according to Section 7 of the Limitation of Actions Act, 1958 (Vic) this statute
essentially means that if you are in possession of a parcel of land, you can be presumed
of having title to that parcel of land. However, there is a restriction towards timeframe
of possession and varies from 3 years to 15 years. For Victoria this timeframe is 15
years and the title or interest of the owner to any parcel of land will not be affected by
31 Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
32 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
33 Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65

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the reason of any possession of such parcel of land which is adverse to the interests of
title holder34.
2) DOCTRINE OF FIXTURES
Legal definition of a fixture is that it is an item of permanent nature which has been
affixed to a structure (building) in a way so it becomes an integral part of that building.
The concept, in legal context is as ‘Doctrine of Fixtures’. Now if you are to sell your
property, you have the right to exclude specific some or all of such items from the sale
list and this is your legal right to remove that item(s) if a declaration is made prior to
settlement. Courts usually follow one of the following two tests to certify the
authentication of this doctrine35.
The first test that is applied is known as ‘degree of annexation'. Use of this test is
relatively straightforward as the court would simply examine the method by which the
specified item(s) have been affixed with the structure. The more permanent is the
method of affixation, the more likely it is that the court will consider it as a fixture. The
most common fixing methods considered for this test are screws, concrete or glue and
use of any one will make that item as a fixture and not a chattel and if it has not been
declared by you in the settlement contract, then it would be considered as sold with the
property36.
The second test, known as the ‘object of annexation’ is a subjective test. The courts
usually attempt to ascertain what would have been the intent of a reasonable person
when installing such item(s).
Since the application of this test is based on subjective understanding, it is very difficult
to come to a conclusion through this test. Hence, in order to not arrive at any
unsatisfactory result, which may lead to an expensive and time consuming litigation, the
courts would leave the settlement of such matters through the language used in the
Contract of Sale.
34 Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25
35 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
36 Shepherd v The Queen (1991) 170 CLR 573; [1990] HCA 56

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In my view, if there are indeed some items which you have the desire of taking along
with you when you finally decide move out, then you must specifically declare such
items and these should be expressly and specifically excluded from the Contract of Sale
by making a declaration to this effect. I would also advise you to instruct the selling
agent to advise the potential purchasers about these excluded items37.
3) DOCTRINE OF FINDINGS
John Blue cannot have any legal right over the ‘blacksmith’s anvil’ as Section 41(1) of
the Limitation of Actions Act, 1958 (Vic) states that if any property or object or asset is
found in or attached to the structure or premises under consideration and depending on
the condition as to whether the occupier or owner is aware or not about the existence of
such a property or object or asset, the occupier or owner has a better claim over such an
item than the finder. Moreover, as has already been explained by me, John Blue could
have removed this object during his stay in the house for two years, from 1992 to 1994,
but he did not do the same. Under these circumstances, my content is that the case of
South Staffordshire Water Company v Sharman38,[17] applies correctly to this situation.
In that case, court’s ruling went in favour of the owner of the property, over the claim of
the finder, when some gold rings, embedded in mud, were found at the bottom of the
swimming pool.
Conclusion
On the first demand raised by John Blue, it is clear that his charges of Adverse
Possession, the allegations are totally false. You never squatted on the property nor
have you ever taken an unlawful possession of this property.
This property was promoted by your parents, and being their only legal heir, you have
full legal authority of owning it and to make any changes which you deem fit for the
betterment of the property.
The second demand made by John Blue is about the implications under the ‘Doctrine of
Fixtures’. I have discussed this matter under the heading ‘Doctrine of Fixtures’, and it is
clear that the final outcome of the difference between ‘Fixtures’ and ‘Chattel’ can be
decided at the time of drawing the contract when you finally decide to either dispose-off
the property or decide to restructure it completely. If the ‘Fixtures’, as they will have to
37 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
38 M v The Queen (1994) 181 CLR 487; [1994] HCA 63