Feb 19, 2003 - Keywords: Clinical negligence; Consent; Human tissue; Malicious damage; Organ transplants;. Proprietary rights; Theft; United States. *Med.
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Medical Law Review 2008
Donated organs, property rights and the remedial quagmire Remigius N. Nwabueze Subject: Human rights. Other related subjects: Criminal law. Health. Negligence. Personal property Keywords: Clinical negligence; Consent; Human tissue; Malicious damage; Organ transplants; Proprietary rights; Theft; United States
*Med. L. Rev. 201 I. INTRODUCTION Novel analytical contexts have given courts a fresh opportunity to re-examine the so-called no-property rule in dead bodies and body parts which has dominated English jurisprudence for more than 200 years.1 A major challenge has come from issues raised by the availability of organs for transplantation.2 Burning questions include the status of, and the legal protection available for, harvested human organs awaiting transplantation. Although transplantation technology has been with us for more than five decades, much of the attention from the academic community has centred on ways of addressing the perennial shortage of organs and devising imaginative means of improving supply.3 Consequently, engagement with the frameworks for legal responses to the potential liability issues is relatively scarce.4 *Med. L. Rev. 202 However, recent cases have provided the impetus for this much needed analysis.5 Using Calabresi and Melamed's framework,6 Palmer has argued that liability rules are superior to property rules in dealing with issues raised by emergent biobanks because they bring to focus the relevant ethical issues, such as a person's right to control the actions of professionals and their organisations.7 But, as the next section shows, transplantable human organs raise liability issues that are qualitatively different from those engendered by biobanks (or other body parts). In any event, one need not reject Palmer's proposition in order to argue that property rules are most apposite for resolving some of the conflicts encountered in the context of organ donation. For one thing, biobanks usually house regenerative or ‘waste’ tissues that do not entail the same level of deprivation experienced by a claimant involved in organ litigation. The no-property thesis simply breaks down when you consider that a person willing to donate an organ to a relative, for instance, is obviously anxious that his or her intention is not frustrated and the donation is made only on that basis. Any misapplication or misdirection of the organ is bound to cause an irreparable loss for which there will hardly be a successful action in negligence.8 Similarly, where an organ destined for a particular recipient is stolen by a thief or maliciously *Med. L. Rev. 203 damaged by another, both the donor and the intended recipient would have suffered a loss but it is doubtful that the current legal regime is able to respond to such cases predictably and decisively.9 Therefore, remedies currently available for the victim of a lost organ cannot be said to be certain or adequate. Despite the instinctive revulsion towards the application of the concept of property to the human body and body parts, it has the benefits of predictability and accountability. Mason and Laurie have added that ‘recognising property rights in our person also facilitates further and better respect for individual autonomy, as is required by the ethical principle of respect for persons’.10 Accordingly, this paper attempts to explore the remedial challenge faced by organs ‘in limbo’11 and suggests that a property-based approach to organ litigation is not only useful but generalisable to claims involving other human body parts. The dearth of English, Canadian and Australian cases on the issue of a misdirected body organ naturally explains the generous reliance on cases from the USA where courts have shown a great deal of activity in recent years on the law relating to dead bodies and body parts. The US cases are analysed to show how British, Canadian and Australian courts might respond to the question of property rights in a donated human organ, but attempts are made to highlight UK statutes and cases that bear some relevance to the legal problems arising from misdirected organs.12 Though it is extremely doubtful that directed cadaveric donation is permissible in the UK,13 the Human Tissue Act 2004 nevertheless permits directed organ donation *Med. L. Rev. 204 for live transplants.14 To that extent, the US cases provide some analogical relevance to the UK since directed organ donation in both cases (cadaveric and live transplants) raise similar property issues. Although issues relating to donated human sperm and eggs are very important and deserve serious consideration, they do not, however, provide the focus of this article.15 Although mentioned in passing in this section (and the next section) this paper
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does not dwell on questions relating to legal liability for defective organs, an area in which negligence can play a greater role.16 For sure, a directed organ might be found to be defective and, therefore, trigger negligent liability; but the main foci of this paper are on misdirected, stolen or maliciously destroyed organs (which are not necessarily defective).
II. ORGANS DONATED FOR TRANSPLANTATION Transplantation technology brought with it a significantly different dimension to property claims over the human body and body parts. Unforeseen problems may arise in the course of moving organs across state and local borders and through several authorised hands en route to the recipient. Although people within the organ transfer network (physicians, nurses, administrators and technicians) appreciate the need for optimal levels of care and competence, human fallibility remains an undermining factor with enormous potential for injury. For instance, an organ donated and prepared for transplantation might be damaged by poor preservation techniques or inefficient handling. Likewise, an organ donated by A for transplantation to B might be intentionally or negligently redirected to C, or maliciously damaged by D. Such challenges have exacerbated with the development of organ transplantation as a routine medical procedure. It is important that a legal system should have clear rules for dealing with such problems. What remedies, if any, should a proposed recipient of a directed organ donation have if it was unjustifiably redirected to another person or maliciously damaged? A claim in negligence is surely one of the possible causes of action, though problems relating to causation and proof of damage remain formidable.17 The focus here, however, *Med. L. Rev. 205 is on the property liability of a defendant in the above hypothetical scenario. Property claims to body parts donated for transplantation are qualitatively different from other contexts in which property rights have been asserted with respect to the human body and parts of it. For instance, it is possible to outline five categories of cases in which questions of property rights to the human body have been encountered (these are non-exhaustive categories18 ): (a) cases where the deceased's relatives (or next-of-kin) claim to have the right to possession and custody of the deceased for the purpose of burial and seek damages for (or an injunction against) the infringement of that right. (b) Cases concerning the right of the next-of-kin to receive the deceased's body in the condition it was when life left it.19 This right gives protection against the mutilation of a corpse. (c) Cases concerning an entitlement or right of relatives to determine the time, place and manner of burial. (d) The right to be notified of the deceased's death before his or her burial or cremation. (e) Rights relating to the disturbance of the grave or right of repose. In all these categories, a key element is the preservation of a corpse for the purpose of burial. Accordingly, none entails deprivation of property in the real sense of that term. The injury is emotional, not proprietary. Resort to property (or, more appropriately, quasi-property) becomes necessary only to avoid the remedial hurdle of proving a contemporaneous physical, psychiatric or pecuniary loss innegligence. A savage attack on the dead body of an ancestor gives rise to an indescribable mental anguish but hardly any physical or pecuniary loss. Unfortunately, most common law systems do not recognise emotional harm, except it approximates to a recognisable psychiatric injury. In the absence of any form of legally recognisable injury, a negligence suit becomes problematic. To circumvent this difficulty, the US jurisprudence resorted to the legal fiction of quasi-property as a remedial peg that is shorn of the elemental difficulties of negligence.20 *Med. L. Rev. 206 In this way, the next-of-kin's right to the body of a deceased relative is considered something akin to property so that a breach of it is actionable without proof of a concomitant physical or pecuniary injury.21 Although a few cases in the USA have attempted to push this remedial construct beyond the realm of fiction,22 it seems that the concept of property in a dead body is yet to have a firm hold in the USA. But a claimant wronged by the misapplication of a directed organ highlights a grievance that is inherently different from those categorised above.23 The consequential injury is different both in form and substance. More than emotional pain, a misdirected organ causes some real, physical deprivation.24 The claimant will complain about not only his or her mental agony but also the loss of a physical organ directed to him or her. In this context, the recourse to the remedial fiction of quasi property seems quite unnecessary. The claimant has lost something whose physical embodiment shares some of the characteristics of ordinary forms of property and would, accordingly, be reasonable to expect a proprietary redress. This element of deprivation distinguishes organ transplantation cases from those of pure emotional harm. Even then, not every case will evince this deprivation; and this might be a solace for those who fear expansive liability in this regard. For
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instance, cases like Urbanski v. Patel 25 and Sirianni v. Anna, 26 where the negligence of a physician caused the patient to need an organ that was then provided by a relative, involve acute emotional harm but no deprivation in the sense highlighted above. Closer scrutiny debunks any argument that, at least, the donor in Urbanski/Sirianni type of cases must have suffered a deprivation of his or her organ in the *Med. L. Rev. 207 property sense. Analogical reasoning will come in handy for a rebuttal. Could you be said to have been deprived of the use or ownership of one of your cars (or indeed your only car) simply because you made a gift of it to your relative who lost his or her own car in an accident caused by the negligence of the defendant? The voluntary transfer itself would diminish any sense of deprivation, though the foreseeability of such a chain of events would arguably ground an action in negligence (though the issue of proximity might arise). It is the same with cases of the so-called ‘defective’ organs, such as the widely-publicised US case where an organ of the wrong blood type was implanted into the body of a 17-year-old girl (Jesica Santillan).27 Jesica's body immediately rejected the organ after the transplantation procedure. No matching organ was available for re-transplantation, and Jesica's situation became extremely critical. Both Jesica and her family members were understandably distressed, but could not be said to suffer any deprivation in the property sense. Although the distinction based on deprivation exists, the question is whether it should give rise to a recognisable property claim to transplantable body organs? Two scenarios present themselves for analysis: first, where a directed organ is maliciously damaged by the defendant and secondly, where the organ is redirected to another recipient, although originally intended for the claimant.
A. Malicious Destruction of Directed Organs What happens when, for instance, a transplant patient's enemy or other persons deliberately destroy an organ awaiting lodgement in the body of the patient? What are the patient's remedies? And those of the donor too in the case of directed donation? Statutory considerations apart,28 this scenario acutely expresses the relative strengths and weakness of both proprietary and non-proprietary remedies at common law. It is difficult to conceive any beneficial application of a non-proprietary framework in this context. If the organ was stolen rather than destroyed, it is most likely that a successful criminal prosecution for theft will ensue.29 But that is criminal law. An action for battery will not lie for *Med. L. Rev. 208 the simple reason that there was no interference with the body of the patient. Excised body parts are not amenable to battery claims. The deliberate act of destruction takes negligence out of the picture.30 It will be absurd to consider privacy or any possible contractual right.31 In contrast, the common law action for conversion would most certainly provide a remedy if we recognise property rights in the human body. And if we do not, the implications are ugly for both the donor and the proposed recipient. Although not a case on organ donation, US v. Arora 32 amply illustrates some of the points already canvassed. Dr Arora was an immunologist with the US National Institutes of Health and was at the material time working in the laboratory of the National Institute of Diabetes and Digestive and Kidney Diseases. Dr Arora employed a Japanese postdoctoral student, Dr Sei, who worked for him, but was also allowed to participate in other research projects not involving Dr Arora. Accordingly, Dr Sei collaborated with two other researchers (Drs Skolnick and Wong) on a pioneering research project that was designed to study the immune properties of certain cell receptors. The objective of the project was to create a cell line which, if successful, would have significant potential for studies on a wide range of neurological disorders. In the course of time, the relationship between Dr Arora and Dr Sei deteriorated, leading the former maliciously to destroy cell lines cultured by the latter. The National Institutes of Health brought a civil action against Dr Arora, claiming compensatory and punitive damages for trespass and conversion. Because conversion is an interference with a property right, the US District Court (Maryland) had to first determine the ownership of the cell line, and observed that ‘the United States owned the Alpha 1-4 cell line’.33 A no-property rule would have failed at this stage of the inquiry, with huge negative implications for potentially lifesaving research by scientists, and similar activities by the biotechnology industry. More significantly, this case accentuates the remedial vacuum and injustice confronting a claimant in body parts' litigation. As Messitte J. observed the ‘Court…sees no reason why a cell line should not be considered a chattel capable of being converted. Indeed, if such *Med. L. Rev. 209 a cause of action is not recognized, it is hard to conceive what civil remedy would ever lie to recover a cell line that might be stolen or destroyed’.34 It is suggested that Arora's reasoning should guide cases of maliciously destroyed organs and should be followed in UK and other common law jurisdictions. Donated human organs should be regarded as property owned by the intended recipient or the donor35 and, in the case of anonymous donations, by the hospital in possession. Otherwise, we risk having valuable organs destroyed with impunity to the eternal disgrace of a legal system.
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B. Misapplication or Redirection of Donated Organs Remedial problems also arise when donated organs are not maliciously damaged but redirected to the detriment of the directed donee (and donor, of course). It does not seem that there are clear statutory provisions for dealing with this type of problem. Because of its concentration on criminal penalties, there is only a small scope, if any, for the application of the Human Tissue Act 2004 to cases of misdirected organs. Moreover, the Human Tissue Act 2004 provides no civil redress for litigants of lost organs.36 Similar claims in the US are likely to trigger the immunity clause embedded in the gift of life statutes of most states.37 Absent statutory considerations, however, the issue falls to be decided under the common law. But the common law remedies outside the zone of property law have already been noted to be inadequate. It is argued, therefore, that a proprietary approach is sure to reach beyond the narrow confines of non-proprietary remedies. Few recent cases have dealt directly or anticipatorily with the problems in this connection. In R v. Kelly ,38 an artist used the help of a morgue attendant to surreptitiously obtain preserved body parts kept under the control of the Royal College of Surgeons. The stolen body parts were used for artistic casts and sculptures. Upon prosecution under the Theft Act 1968, the *Med. L. Rev. 210 accused artist argued that under the common law cadavers and parts of cadavers belonged to no one (no-property rule) and that non-consensual use of cadavers did not amount to stealing under the Theft Act. The Court of Appeal accepted the general proposition that there is no property right in the dead body of a human being or parts of it. However, the Court of Appeal restated an exception developed by the High Court of Australia in Doodeward v. Spence 39 to the effect that enforceable rights of property exist in a corpse which has acquired an attribute differentiating it from a mere corpse awaiting burial; such as corpses or body parts that have gone through the application of work and skill.40 But the interesting aspect of Kelly's case is the Court of Appeal's anticipation of an extension of the property rule to cases outside the work and skill exception. In no uncertain terms, Rose L.J. observed: It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purpose of s.4 (Theft Act), even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. This may be so if, for example, they are intended for use in organ transplantation operation, for the extraction of DNA or, for that matter, as an exhibit in a trial.41 The difficulties of a contrary rule make the above prophecy a self-fulfilling one. It is untenable that Rose L.J.'s reasoning should not apply to civil cases of misdirected organs. Currently existing (or alternative) legal options are not attractive, and probably kept Mason and Laurie ‘wondering where an effective remedy is to be found in consent-based law’.42 For instance, how can an action in negligence possibly scale the causation hurdle and the requirement for proof of damage? David Price was right to suggest that an organ provided by a donor for a particular recipient should be considered as having been effectively bailed, by delivery, to the relevant clinicians, and that: In the event of a breach of [the] bailment, legal liability would arise and possession would potentially revert to the bailor. It would not be simply a matter of being able to maintain an action for damages for breaching the terms of consent given.43 *Med. L. Rev. 211 It comes as no surprise then that more recent cases are focusing on property claims despite early judicial reluctance to traverse that route. Though an obiter dicta set in the context of criminal litigation, Kelly's case suggests that a wrongful redirection of an organ meant for a particular recipient is actionable as an interference with a property right. A more recent and direct case is the US Court of Appeals Second Circuit's decision in Colavito v. New York Organ Donor Network, No. 2. 44 In Colavito's case, Mrs Lucia donated her deceased husband's two kidneys to Colavito (a long-time family friend) who suffered from end-stage renal disease. Colavito, however, needed only one kidney and could legally receive only one at a time under the prevailing statutory provisions. For this purpose, the deceased's kidneys were removed in a New York hospital and the left kidney was air-lifted to a hospital in Miami, Florida for lodgement in the body of Colavito. Minutes before the kidney transplant in Miami, Colavito's physician discovered that the left kidney was irreparably damaged. An immediate call to the New York hospital, to request the right kidney, revealed that it had been directed to another recipient. Although at the time of calling the New York hospital Colavito's physician believed that the right kidney was already in the process of implantation to the other recipient, that transplant did not actually take place until three days later. In any event, after the failed
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surgery in Miami, Colavito's physician received histo-compatibility test results which conclusively showed that the deceased's two kidneys were histo-incompatible with Colavito's antibodies. In other words, the transplant in Miami could not have materialised in any event. As it were, the redirection of the right kidney was of no consequence. Colavito, however, was not given this information (histo-compatibility test result) until some days before he commenced the suit. He brought an action against the defendants claiming fraud, conversion and violations of New York Public Health Law.45 His fraud claim was dismissed on the merits by both the trial District Court and the United States Court of Appeals (Second Circuit). As regards his important conversion claim, the District Court accepted cases that denied the existence of a property right in a corpse or parts of it, and concluded that there was a common law public policy against recognising property rights in human cadavers.46 The District Court's ruling resonates with the commodification argument that undergirds the no-property rule in dead bodies and *Med. L. Rev. 212 body parts.47 But on appeal to the Second Circuit of the United States Court of Appeals, Sack J. observed that cases of misdirected organs are better analysed under relevant statutory provisions (rather than common law principles). Nevertheless, Sack J. denied the existence of a common law doctrine against property rights in the human body, observing that the no-property proposition is largely supported by anachronistic cases delivered in a period of relatively insignificant technological growth. In a bold move that promises to break the Moore precedent,48 Sack J. observed that there is no ‘modern consensus that body parts are excluded from conversion actions at common law’.49 He noted that cases of lost organs involve real deprivation that arguably justifies a property claim: The control-over-corpse cases restrict the recovery of relatives to emotional distress because that is in fact what they suffered. But a lawsuit based on the loss of a donated organ typically seeks more than compensation for injured feelings. The intended recipient of a human organ does not bring suit for control over a dead body and its constituent parts. He or she sues for the loss of a functioning organ…Plaintiffs such as Colavito are not using the term “property” as a legal fiction upon which to base a claim for emotional harm. They have - or assert that they have - a practical use for the organ, not a sentimental one.50 Even apart from the common law, the Court of Appeals accepted the possibility of a statutorily inspired property framework, observing that under some statutes on organ transplantation ‘a person or entity may have an enforceable property right in a functioning organ’.51 This ruling has the potential of moving a property claim to the human body beyond its rhetorical value,52 and the judgement possibly vindicates the advocates of limited property rights to the human body. Despite its ethical and sentimental value grounded in moral and policy objectives (non-commodification and non-objectification of the *Med. L. Rev. 213 human body), the no-property framework is ill-suited to problems of misdirected organs; though it is erroneous to think that a rejection of the no-property rule amounts to a dismissal of its underlying values. The controversy, however, does not lie as much in the underpinning values of a rule53 as in ways of realising the stated objectives. A limited property rule that is consistent with human autonomy and dignity would prevent the unjustifiable and non-consensual exploitation of a person's body parts.54 The no-property rule, in contrast, leaves the human body and parts of it free for the taking, a situation that defeats its laudable objective.55 This contradiction in the no-property argument56 is an objection that seriously undermines its utility. It is difficult to imagine how the no-property rule could protect body organs from the depredations of ‘body-hunters’ without the effective and fencing power of property.57 In the Colavito type of cases, a no-property rule faces insurmountable difficulties. For instance, a claim in battery is of no avail except if it is accompanied by some substantial or punitive damages.58 Moreover, it is unlikely that an action in battery is applicable to an excised body part or organ. In any case, the acquisition of body parts or organs is, in most cases, enabled by a prior consent and this makes a battery claim utterly irrelevant. Outside organ donation, however, consent-related problems usually arise where body parts are obtained with initial consent but subsequently put to a detrimental use unapproved by the donor; or beneficially applied in a research venture for which the donor now claims a share of the profit. A consent-based framework does not adequately manage this sort of problem.59 The success of an action for unjust enrichment is highly speculative *Med. L. Rev. 214 and totally inconceivable in the case of a negligently misdirected organ. Unjust enrichment does not exist if there is no enrichment in the first place60 and this is typical of most cases of misdirected organs.61 Claims in privacy and contract are hardly relevant in the Colavito type of cases.62 An action in negligence will rarely scale the causation hurdle,63 and this leaves a property claim as the best chance of judicial remedy for a claimant.64 The failure of the panoply of no-property remedies mirrors the anxiety of the court in Ritter v. Couch 65 when it asked: The world does not contain a tribunal that would punish a son who would resist, even to death, any
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attempt to mutilate his father's corpse, or tear it from the grave for sale or dissection; but where would he find the legal right to resist, except in his peculiar and exclusive interest in the body? It is suggested that a limited property rule provides greater protection for the ideals cherished by the no-property rule. Colavito's case (No. 2) is paradigmatic and, therefore, is a welcome new development in the law relating to dead bodies and body parts. The decision, however, has three features that militate against its generalisation: (a) the ruling is located squarely in the context of misdirected organs meant for transplantation and might be easily distinguished in other contexts. (b) The decision was not conclusive. Relevant questions and issues were certified to the New York Court of Appeals, which has returned some crucially negative answers.66 (c) The dissenting judgement of Jacobs J. thought *Med. L. Rev. 215 that the whole issue of property rights to a misdirected organ could be avoided by deciding that under the relevant statute a donee was not entitled to two kidneys at the same time (when one should be appropriate). Any hope that the Court of Appeals of New York will follow or deepen the property approach suggested by the majority of the US Court of Appeals Second Circuit has been dashed. In Colavito No. 3 ,67 the Court of Appeals of New York consciously avoided the distinction based on deprivation, preferring, instead, the ratio of old cases endorsing the no-property rule; but it acknowledged that interferences with corpses and body parts could be actionable in negligence. Although the Court of Appeals of New York accepted that those cases were anachronistic and most of them predated transplantation technology, it held that they provided adequate guidance for a confident answer to the questions before the court. In returning negative answers to the certified questions, the Court of Appeals of New York was careful to observe that since the “‘no property right” jurisprudence was developed long before the age of transplants and other medical advances, we need not identify or forecast the circumstances in which someone may conceivably have actionable rights in the body or organ of a deceased person’.68 With this cautionary approach, its answer to the question of whether a common law right of action in conversion avails the victim of a misdirected organ was, as expected, restricted: ‘For the purpose of this case it is enough to say…that plaintiff, as a specified donee of an incompatible kidney has no common-law right to the organ’.69 Note the circumspection of the court and the choice of language; it simply means that a property right might well have been upheld if the kidneys were compatible with Colavito's immune system. Similarly, on the question of whether a private right of action exists under the New York equivalent of the Uniform Anatomical Gift Act, it held that the statutory scheme made a specified organ donation conditional on the medical need of the intended recipient and since Colavito could not have been in need of incompatible kidneys, he was precluded from bringing a private action under the statute.70 Again, this suggests that a different *Med. L. Rev. 216 factual situation might underpin a private statutory action, though this is likely to be met with the good faith immunity provision which the court did not find any need to discuss in Colavito's case. Suffice to say that in Colavito No. 4 , the case came again to the United States Court of Appeals Second Circuit but, this time around, it agreed to dismiss Colavito's claim because ‘as a matter of law…Colavito could not have derived a medical benefit from the organ and did not “need” it’71 As could be seen, the medical state of the kidneys proved to be key and decisive in Colavito's case. Because of this factual consideration, it is hasty to conclude on the basis of these later decisions (in Colavito's case) that there is no property right in a donated organ. The correct legal position is still unclear. The last word is yet to be said on the property status of a human organ (donated to a specified recipient) in the period between its extraction and implantation. For reasons explored above, it is suggested that the decision in Colavito No.2, based on the factor of deprivation, should guide future cases and should be followed in the UK and other common law jurisdictions.
III. BODY PARTS USED FOR RESEARCH If Colavito No. 2 (the Second Circuit's first ruling) found anchorage in the law of property, as suggested above, should a different rule apply to similar complaints outside a misdirected organ scenario? Should it matter that an organ or body part was meant for research and not transplantation? Although Colavito's (No. 2) property paradigm was based on a real, non-sentimental, deprivation suffered by the claimant, there is no reason for such a limited bestowal of the property framework. It is mischievous to draw a rational distinction between the actual deprivation of a body organ and emotional harm resulting, for instance, from a heinous mutilation of a close and beloved relative's dead body. In any research context, a search for deprivation (in the Colavito sense) is bound to be futile. For instance, when a claimant gives her tissue for research but complains that it was later put to a prejudicial use, it is difficult to see any deprivation other than the emotional distress engendered by such unauthorised exploitation. Worse still, the claimant confronts a remedial challenge that is not mitigated by the no-property rule. Say, for instance, that a claimant's tissue was
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non-consensually tested for HIV/AIDS when consent was only given for a diabetic test.72 Apart from a potential action based on property, an *Med. L. Rev. 217 action in negligence (for lack of informed consent) would seem to be the next best thing but any hope in that regard is bound to be forlorn.73 Moreover, proof of an affirmative duty to refrain from conducting the unauthorised test is sure to be daunting. An action for breach of privacy holds little prospect for success since the facts do not come under any of the four distinct categories that animate privacy analysis: (a) intrusion upon seclusion, (b) appropriation of name and likeness, (c) public disclosure of private facts and (d) putting a claimant in false light.74 An action in battery is similarly unavailable since the claimant's tissue was obtained with consent and the complaint only relates to the test. A contractual claim would have to establish an extant express or implied contract that prevented the unapproved test. In contrast, a property claim is sure to rescue a claimant in these difficult positions. It is in keeping with justice that a non-consensual and prejudicial use of a claimant's blood should amount to conversion.75 Otherwise, such a claimant is faced with the prospect of an injury that is irremediable, but not inevitably so.76 Discomfort with a limited property rule for body parts stems partly from an erroneous view that it would stifle the activities of scientists and biotech companies. Such an outcome is not inevitable. In Arora, Kelly, AB v. Leeds and other similar cases, we saw that the beneficiaries of a property framework were scientists and biomedical institutions. In those cases a no-property rule would have obstructed the course of a potentially beneficial research. When a research participant plans to arbitrarily withdraw tissues donated for research, it is likely that he or she will be met with a property defence. If not, upon what basis could the researcher or research institution withhold the tissues? Any argument on retention can only be based on a property right. While the importance of a property rule in research environments is beyond cavil, problems arise in suggestions, as in Moore's case, that it should only be enjoyed by scientists and biotech companies to the exclusion of tissue sources. This discrimination is not based on any rational principle. Two recent US cases have dealt with the status of body parts obtained for the purpose of research. *Med. L. Rev. 218 In Washington University v. Catalona ,77 an established cancer researcher in the Washington University, Dr Catalona, moved to Northwestern University and sought to take along with him some tissues in Washington University's biorepository. Tissues in the biorepository came from many sources. Some were contributed by participants in cancer research conducted by Dr Catalona, whereas others were given by participants in a similar research conducted by other medical researchers (Dr Catalona's colleagues). The biorepository was at all times under the control and possession of Washington University. The tissues were collected pursuant to an informed consent form which clearly stated that the collection was only for research and that the samples were donated. The informed consent form, however, was not clear as to what would happen to the samples upon a participant's withdrawal from the research. Evidence showed that practice in this regard was heavily influenced by ethical guidelines and research custom: such tissues were hardly ever given back to the participant but could be used anonymously, or stored indefinitely without use or destroyed. A few days before Dr Catalona moved to Northwestern University, he got some of his research participants to sign documents which purported to mandate Washington University to release their tissues to Dr Catalona or Northwestern University. The claim was resisted by Washington University; it asserted ownership over the tissues. An interesting aspect of this case is that all the parties based their claims on property, a feature that marks its superiority in dealing with most disputes relating to body parts. In essence, Dr Catalona argued that his research participants, despite endorsing the informed consent forms, retained property rights over their tissues and were entitled to withdraw them or have them transferred to their orders. Washington University, on the other hand, submitted that the participants' property rights in the tissues, if any, expired upon donation to the university which became the new ‘owner’. The tissues, Washington University further argued, were after all in its biorepository and subject to its exclusive possession and control (clear indicia of property). As Limbaugh, the Senior District Judge realised, the ‘sole issue determinative…of this lawsuit is the issue of ownership’.78 Such a bald formulation of the extant judicial inquiry assails any argument that property concepts are inherently inapplicable to body parts. Limbaugh J. elaborated by observing that the question was whether ‘having made voluntary donations of biological materials for medical research to a research institution, do the research participants retain ownership rights in such materials in that they can direct *Med. L. Rev. 219 said materials' use and transfer to third-parties?’79 If we place emphasis on ‘retain’ in the above quotation, then some of the questions under consideration simply resolve themselves. Could the research participants transfer property rights in their tissues to Washington University or retain such rights upon transfer unless they had some property in their tissues in the first place? Catalona's case provides a good use of property framework to do justice in a research setting. In other words, while a tissue source is considered to have some recognisable property rights in his or her tissues, such rights are relinquishable. They are determined, for instance, by a proper donation of
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tissues to researchers or research institutions. It is upon this type of analysis that any subsequent property claim by a researcher or research institution can be justified. Limbaugh J. took this line of reasoning when he accepted previous precedents that considered a ‘research participant to be a ‘donor’ who had parted with any semblance of ownership rights once their biological materials had been excised for medical research’.80 Once the court implied that the research participants originally had property rights in their tissues, the decision that they were ‘donors and [that] the…biological materials constitute [d] an inter vivos gift’81 was not difficult to reach. The court held that all the elements of a valid gift were present, such as intention, delivery and acceptance. Accordingly, Limbaugh J. concluded that Washington University owned all the biological materials in its biorepository and that ‘neither Dr William Catalona nor any research participant… has any ownership or proprietary interest in the biological samples housed in the GU Repository’.82 Catalona's case followed the much earlier decision in Greenberg v. Miami Children's Hospital Res. Inst. ,83 which sharply reminds us of some of the more modern biotechnological applications of the human body, and the conflicting economic interests that are involved. The Greenberg claimants were individuals and families suffering from Canavan disease (a rare genetic disorder) and non-profit institutions that fund research relating to such diseases. Canavan disease afflicts mostly Ashkenazi Jewish families. With a view to developing pre-natal and carrier screening tests for the disease, the plaintiffs collaborated with the defendants' researchers and research institutions to sequence and isolate the Canavan gene. The claimants provided blood, tissue samples, medical and epidemiological information and money to the *Med. L. Rev. 220 defendants. In addition, the claimants searched for and recruited worldwide other families and individuals suffering from Canavan disease into the research project. They also opened a Canavan Registry that housed genetic, medical and epidemiological information about the Canavan disease families. In 1993, the Canavan gene was successfully isolated and a patent was obtained in 1997, without the knowledge of the claimants. Due to the defendants' restrictive licensing practice, the claimants alleged that their objective of ensuring public accessibility to Canavan testing had been defeated by the defendants. Accordingly, the claimants brought six causes of action, including a claim for conversion, alleging that the claimants' property interests in their body tissue and genetic information were converted by the defendants.84 The defendants argued that property rights to the human body were not recognisable in law and that the claimants' suit should be dismissed for disclosing no reasonable cause of action. Moreno J. declined to ‘find a property interest for the body tissue and genetic information voluntarily given to Defendants’.85 But the explanation for this assertion is hardly assailable. As Moreno J. observed, the tissues and genetic information ‘were donations to research without any contemporaneous expectations of return of the body tissue and genetic samples’.86 It is true that Moreno J. went on to make a more generalised statement implying a no-property rule to the human body based on Moore's case. It is suggested, however, that Moreno J.'s no-property exegesis should be seen in the context of his ruling (as in the quotation above) that the claimants were mere donors of tissues. This carries the acute but unexpressed implication that the claimants had property rights in their tissues. Otherwise, the donation theory makes no sense. It equally means that outside a donation context, as in Moore's case, a nonconsensual user of body parts would be properly accountable in property law. Catalona and Greenberg's affirmation of a property right in the parts of a human body through a gift doctrine accords with Lord Parker's classic exposition of the validity of gifts in law and equity.87 At common law, gifts are not valid except when the donor has, in addition to other elements, ‘the necessary disposing power’.88 Certainly, this must be a power of property since you cannot give what you do not have. The donation paradigm employed in recent body parts cases suggests that individuals have property interests in *Med. L. Rev. 221 their own bodies and have the power to dispose of such property to researchers or research institutions. If we accept that a property rule operates in a misdirected organ and donated body parts situations, why should a contrary rule apply to conscripted body parts?
IV. CONSCRIPTED OR NON-CONSENSUALLY HARVESTED BODY PARTS It does not seem to make any sense to apply different legal categories to different parts of the body89 or to make the application of any legal category dependent on the factual situation of a body part. If the victim of a lost organ had a property right on it, and the donor of tissues for research also had one, upon what basis do we deny the property claims of a claimant whose body parts were harvested without his or her consent?90 Is this not a more compelling case for redress?91 Yet, the Moore court seemingly maintains the absurd proposition that a victim of conscripted body parts cannot appeal to property law. In that notorious case, Moore alleged that his physician (Dr Golde) surreptitiously harvested his bodily tissues after a successful splenectomy procedure but without his consent.
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Moore's tissues were subsequently used in a biomedical research that produced a patented and lucrative cell line. Moore claimed a share of the profits through a cause of action in conversion (among other causes of action). A majority of the Supreme Court of California held that Moore did not have any property right in his own excised tissues to found a conversion claim.92 Nonetheless, the court held that Moore stated a cause of action for lack of informed consent and breach of fiduciary duty. In a curious irony, however, the majority held that Dr Golde was entitled to Moore's excised tissues. This discrimination in the attribution of property rights over Moore's tissues is neither based on logic nor principle. It is all the more apparent that it was a policy decision to promote biotechnological innovation by protecting researchers and research institutions against critical property claims by tissue sources.93 It is doubtful that the inclusion of tissue sources in the sharing of research profits will undermine the development of the *Med. L. Rev. 222 biotechnology industry. The existence of material transfer agreements over raw materials of biomedical research, with provisions for equitable sharing of benefits, has not produced any discernible detrimental effect on technological progress. Being the first major decision delivered in the early days of the biotechnology industry, one can appreciate the hesitation of Moore's court to traverse the property route. The decision in Moore's case produced a manifestly unjust result, notwithstanding the judicial affirmation of Moore's entitlement to trial for breach of informed consent rules (negligence). But the availability of a negligence suit amounts to little consolation for Moore since, as observed by Dworkin and Kennedy, ‘there would be problems in determining the nature of any damage causally connected to the breach of duty or the measure of any such damage’.94 Apparently supportive of the outcome in Moore based on their vision of the body as an interconnected, inter-dependent and dynamic entity, Herring and Chau argue that ‘to penalise the use of a person's body parts without permission does not require us to recognise the body as property’.95 If this suggests that compensation could, and should, be based on a nonproprietary form of action then it underestimates the problem. Two possible objections could be raised. First, absent the specification of a particular non-proprietary form of action, as noted above, the authors probably had negligence in mind or the similar claim for lack of informed consent which was approved in Moore. If so, a difficulty presents itself. How would Moore have been able to prove that if he had been informed of the facts that he would have forgone the life-saving and medically necessary splenectomy? Moore should rather count himself lucky that the case was settled afterwards, because negligence and other non-proprietary approaches offer little prospects of success for claimants in body parts litigation. Secondly, Herring and Chau draw support from the example that the ‘Human Tissue Act 2004…creates a scheme which, to some extent, protects people's rights to control what happens to their bodily material without explicitly giving them property rights over them’.96 Again this suggests that the Human Tissue Act 2004 resting, as it were, on consent is capable of redressing the Moore type of cases. But with the authors' concession that consent has the inherent limitation of depriving a claimant of continuing control over an excised body part,97 then the argument *Med. L. Rev. 223 based on the Human Tissue Act 2004 becomes unhelpful (at least in the context of Moore type of cases). Nevertheless, one appreciates that the more or less communal vision of the human body adopted by Herring and Chau naturally gravitates towards the outcome in Moore. Considering the difficulties of non-proprietary approaches, it is no wonder that recent cases such as Kelly, Colavito and Catalona have adopted a different reasoning based on property. When the opportunity presents itself again, especially in the UK and other countries where there is no trammelling precedent like Moore , it is suggested that a judge should adopt a property approach to cases of conscripted body parts. Apart from the advantage of consistency, it is just the right thing to do. With appropriate consent, researchers will still obtain the biologic raw materials they need for their research. Similarly, a tissue source could give consent with or without a stipulation as to participation in the profits of research and should be able to claim a property-based right to participation in the profits if his or her tissues were harvested without consent. This achieves a balance that was skewed by the majority in Moore's case.
V. STATUTORY LIABILITY FOR ORGANS The Human Tissue Act 2004 criminalises unauthorised interferences with organs and other body parts, but does not provide a civil remedy for non-consensual use of body parts. This suggests that civil liability will be regulated by common law which, as we have seen, is deficient in many respects. Some regulatory activity at the European level is evident, though there does not seem to be any specific provision that addresses the issue of legal liability in connection with a misdirected or maliciously damaged organ.98 In contrast, most gift of life statutes in the USA permit civil actions such as negligence and, arguably, conversion. For instance, Article 43-A of the New York Public Health Law 1985 (Request for Consent to an Anatomical Gift), section 4351(7) provides that: ‘any person or
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organization acting pursuant to this section shall be legally responsible for any negligent or intentional act or omission committed by such entity or its employees or agents’. As Justice Sack observed in Colavito No. 2 ‘it is arguable that under the New York Public Health Law, a person or entity may have an *Med. L. Rev. 224 enforceable property right in a functioning organ’.99 The drawback of a statutory action is the immunity clause embedded in some of the organ statutes. For instance, Article 43 of the New York Public Health Law, section 4306(3) provides that: ‘A person who acts in good faith in accord with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act’. A similar immunity clause in Arizona was upheld in Ramirez v. Health Partners of S. Arizona 100 where the defendants went beyond claimant's authorisation to harvest additional body parts. The point, however, is that any hope of remedying common law deficiencies with the current statutory provisions is bound to be disappointed.
VI. CONCLUSION Misdirected and maliciously damaged organs raise special issues of legal liability that require serious analytical engagement. There is a need to consider the appropriate legal protection for human body organs in the period between their harvesting and transplantation.101 In the absence of any legal policy against the remediation of interferences with the human body organs and other types of body parts, it might be useful to adopt a property approach to redress the current remedially bleak situation which has been described as anti-claimant.102 For sure, a property-based claim such as conversion attracts the objection that it raises a spectre of strict liability, so that all the participants in the transactional chain involving a human body part, whether they are wrongful or innocent handlers, would be liable to the claimant. While this fear might be overestimated,103 there is good reason for trusting that the judicial resourcefulness of the common law system would be able to manage such a potential concatenation of liability. Accordingly, it is suggested that while human organs ‘in limbo’ express the need for a property protection more acutely, it would be beneficial to extend the property framework to other types of body parts. Remigius N. Nwabueze, SJD (Toronto); City Solicitors' Educational Trust Lecturer in Property Law, School of Law, University of Southampton, UK. Many thanks to Dr Caroline Jones for her comments on the earlier draft of this paper. I am grateful for the helpful comments of the two anonymous reviewers. The usual caveat applies. Med. L. Rev. 2008, 16(2), 201-224
1.
Doubts have been expressed as to purity of the pedigree of the historic no-property rule in dead bodies: P.D.G. Skegg, ‘Human Corpses, Medical Specimens and the Law of Property’ (1975) 4 Anglo-American L. Rev. 412; P. Matthews, ‘Whose Body? People as Property’ (1983) 36 Current Legal Problems 193.
2.
The distinction between organs and tissues is often blurred and might depend on the terms of a particular statute. An ‘organ’ is not defined in the Human Tissue Act 2004 but is loosely used here to refer to non-regenerative transplantable body parts. Compare s.7(2) of the Human Organ Transplants Act 1989 which defined a ‘human organ’ as ‘any part of a human body consisting of a structured arrangement of tissues which, if wholly removed cannot be replicated by the body’.
3.
An historical perspective of some of the ethical and legal issues raised by transplantation technology is explored by Russell Scott, The Body as Property (The Viking Press, 1981). For a rights-based analysis of transplantable human organs, see Cécile Fabre, Whose Body Is It Anyway? (Clarendon Press, 2006).
4.
Relevant literature include P.D.G Skegg, ‘Liability for the Unauthorised Removal of Cadaveric Transplant Material’ (1974) 14 Med. Sci. Law 53; P.D.G. Skegg, ‘Liability for the Unauthorised Removal of Cadaveric Transplant Material: Some Further Comments’ (1977) 17 Med Sci. Law 123; K. Norrie, ‘Human Tissue Transplants: Legal Liability in Different Jurisdictions’ (1985) 34 I.C.L.Q. 42.
5.
For instance, Colavito v. New York Organ Donor Network 438 F.3d 214 (2006)--Colavito No. 2 --and also Colavito Nos. 3 and 4; Washington University v. Catalona 437 F.Supp.2d 985 (Dist. Ct. Missouri, 2006). There are no comparable cases in common law jurisdictions such as UK, Canada and Australia.
6.
G. Calabresi and D. Melamed, ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ (1972) 85 Harvard Law Review 1089-1128. The authors posit that a legal system could choose to protect an ‘entitlement’ by a property rule, a liability rule or rules of inalienability. While liability rules use after-the-fact determinations of judges and juries to value the transaction in question, property rules determine the value of transactions on the basis of what the parties would have done voluntarily. Property rules, therefore, put much emphasis on contract rules. Rules of inalienability, on the other hand, apply where an entitlement is protected against sale or commercialisation, such as the prohibition of slavery in most legal systems.
7.
Larry I. Palmer, ‘Should Liability Play a Role in Social Control of Biobanks?’ (2005) 33 Journal of Law, Med. & Ethics 70-78.
8.
For instance, there might be some difficulty in proving a legally recognisable psychiatric injury, or overcoming the immunity clauses embedded in organ statutes such as the gift of life laws in the USA. A similar difficulty has been noted in the context of negligent liability for a diseased or defective organ: Jean McHale and Marie Fox, Health Care Law (Sweet & Maxwell, 2007) at 1178. Jonathan Montgomery has provided a good analysis of the potential liability of a defendant for the supply of a defective organ under the Consumer Protection Act 1987: Jonathan Montgomery, Health Care Law , 2nd edn (Oxford University Press, 2003) at 456.
9.
R v. Kelly [1998] 3 All ER 740 (CA) suggests, but does not hold, that there might be a successful criminal prosecution for the theft of a
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transplantable organ. 10.
K. Mason and G. Laurie, ‘Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey’ (2001) 64 M.L.R. 710 at 727.
11.
It has been suggested that an organ is ‘in limbo’ during the period between its harvesting and transplantation: Joseph Goldstein, ‘A Kidney is Given Away, and Patient Can't Sue to Get It Back’ The New York Sun, 15 December 2006 (page unknown).
12.
It should be noted that directed organ donation is permitted in most US states.
13.
I say this with some trepidation as it is based on the widely publicised refusal by the UK authorities (in 1998) to accept a conditional donation of organs made by a deceased man's family--the condition was that the organs must be used for white people only. Department of Health, An Investigation into Conditional Organ Donation (Department of Health, 2000); T. Wilkinson, ‘What's Wrong with Conditional Organ Donation?’ (2003) 29 Journal of Medical Ethics 163. It is, however, conceded that a directed donation is not the same thing as a conditional donation. In the circumstances, it is more accurate to say that the issue of directed cadaveric donation remains open in the UK.
14.
For instance, where the donor and intended recipient are genetically related. Accordingly, the Act allows me to make a voluntary donation of my kidney to my father and no other person. See also Human Tissue (Scotland) Act 2006.
15.
For a detailed analysis of property rights in relation to harvested sperm and eggs, see Remigius N. Nwabueze, Biotechnology and the Challenge of Property: Property Rights in Dead Bodies, Body Parts and Genetic Information (Ashgate, 2007) at 66-77.
16.
For excellent analysis, see Norrie, supra n. 4.
17.
Elsewhere, this author has provided a deeper exploration of negligence in the context of body parts litigation: Nwabueze, supra n. 15, Ch. 5. Also, Norrie provides an illuminating account of negligent liability in connection with the transplantation of body parts: Norrie, supra n. 4.
18.
For detailed analysis of these categories, see Remigius N. Nwabueze, ‘The Concept of Sepulchral Rights in Canada and the U.S. in the Age of Genomics: Hints from Iceland’ (2005) 31 Rutgers Comp. & Tech. L.J. 217-284.
19.
The right to receive the whole corpse, or the conceptulisation of a corpse as capable of being complete, is disputed by Harris who regards the idea as intellectually incoherent, John Harris, ‘Law and Regulation of Retained Organs: the Ethical Issues’ (2002) 22 L.S.. 527 at 542. Notwithstanding Harris's persuasive arguments to the contrary, the concept of a complete corpse has been given judicial recognition in the USA, at least in the context of unlawful mutilation of a corpse, see Nwabueze, supra n. 18, at 251-254.
20.
This means that the problem of proving the existence of a physical or pecuniary injury necessary to ground an action in negligence is avoided by attributing to the claimant a quasi-property right in the corpse of a relative.
21.
A review of US jurisprudence on the point is provided elsewhere: Remigius N. Nwabueze, ‘Biotechnology and the New Property Regime in Human Bodies and Body Parts’ (2002) 24 Loyola of Los Angeles Int'l & Comp. L. Rev. 19-64.
22.
While many US cases acknowledge that the concept of quasi-property in a corpse is a fictional remedial construct, some of the cases, however, have held that real property rights could exist in the parts of a corpse: Brotherton v. Cleveland, 923 F.2d 477 (1991); Whalley v. County of Tuscola, 58 F.3d 1111 (6th Cir. 1995).
23.
An action could be brought by both the donor and the intended recipient or one of them. The problem of determining which of them is the real ‘owner’ of the donated organs is highlighted in the next section.
24.
Compare the Western Australian Supreme Court case of Roche v. Douglas [2000] WASC 146 where the physicality of the body part was a factor that contributed to its ‘propertisation’. In that case, the court observed that ‘it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality’. Ibid.
25.
Urbanski v. Patel [1978] 84 D.L.R. 3d. 650.
26.
Sirianni v. Anna, 285 N.Y.S. 2d 709 (1967).
27.
CNN.com, ‘Girl Tops Transplant List After Error’ 19 February http://edition.cnn.com/2003/HEALTH/02/18/transplant.error/index.html (last visited on 20 may 2007).
28.
It does not, however, seem that the Human Tissue Act 2004 is capable of dealing with this type of situation. For one thing, criminal sanctions are provided only for breach of the statutory consent requirement which arguably does not extend to intentional destruction of a donated organ. Because meaningless destruction of an organ is not one of the permitted uses for which consent can be sought any argument based on the Human Tissue Act 2004 is likely to be misplaced.
29.
R v. Kelly, supra n. 9.
30.
Historically, a negligence suit cannot lie for an intentional and direct conduct. But it is arguable that any foreseeable injury resulting from the destruction is actionable in negligence.
31.
The matter is tortious or criminal but not contractual, and it does not come within any of the four known categories of privacy. For the analysis of these categories of privacy in relation to body parts, see Remigius N. Nwabueze, ‘Interference with Dead Bodies and Body Parts: A Separate Cause of Action in Tort?’ (2007) 15 Tort Law Rev. 63.
32.
US v. Arora, 860 F.Supp 1091 (Dist Ct. Maryland, 1994).
33.
Ibid, at 1098. This case is also significant for holding that there could be property rights in bodily tissues.
2003;
posted
on
34.
Ibid , at 1099.
35.
It is difficult to determine the owner of donated organs between the donor and the intended recipient. This is an area that could be explored in future research and writing. At this time, it is suggested that both the donor and the intended recipient should be recognised as having property rights in the donated organs.
36.
For a good exploration of some of the provisions of the Act, see Kathleen Liddell and Alison Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Med. L. Rev. 170-223.
37.
For instance, the New York Public Health Law s.4306(3): ‘A person who acts in good faith in accord with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceedings for his act’.
38.
R v. Kelly, supra n. 9.
39.
Doodeward v. Spence [1908] 6 CLR 406.
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40.
In the same vein, Gage J. held in AB v. Leeds Hospital NHS [2005] 2 WLR 358 that the defendants (rather than parents of the deceased children) were entitled to the blocks and slides produced by their application of skill and labour upon the tissues of the claimants' deceased children.
41.
R v. Kelly, supra n. 9, at 750.
42.
Mason and Laurie, supra n. 10, at 728.
43.
David Price, ‘From Cosmos and Damien to Van Velzen: The Human Tissue Saga Continues’ (2003) 11 Med. L. Rev. 1 at 30.
44.
Colavito v. New York Organ Donor Network, No. 2 438 F.3d 214 (2006).
45.
New York's version of the Uniform Anatomical Gift Act.
46.
Colavito v. N.Y. Organ Donor Network, No. 1 , 356 F.Supp.2d 237 at 241-247 (E.D.N.Y. 2005).
47.
That argument does not, however, make a sufficient distinction between the recognition of a property right in the body or parts of it and the use of such property. In other words, the recognition of a property right does not necessarily lead to commercialisation. For instance, the fact that I own my house does not mean that I must turn it into a shop or brothel.
48.
Moore v. Regents of the Uni. of Cal. 793 P.2d 479 (1990). This case is more fully analysed in the succeeding sections.
49.
Colavito, No. 2, supra n. 44, at 224.
50.
Colavito No. 2, supra n. 44, at 225.
51.
Ibid.
52.
J.W. Harris gave a good analysis of the rhetorical value of body ownership: J.W. Harris, ‘Who Owns My Body’ (1986) 16 Oxford Journal of Legal Studies 55-84.
53.
For instance, the no-property and property rules.
54.
This is an objective that is also supported by the no-property rule, but that objective is practically unattainable in the operation of no-property rule.
55.
As Margaret Brazier poignantly observed: ‘Absent proprietary claims in your corpse, you are rendered defenceless in death’. Margaret Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) 22 L. S. 550 at 564.
56.
That is, between the objectives of protection (non-commodification), means of protection (no-property) and the result achieved. The no-property rule actually results in less protection for the human body and this is reflected in the common defence of modern day ‘body hunters’ and erstwhile grave-robbers to the effect that there is no property right in the human body.
57.
The idea of protective boundaries delineated by property rights was highlighted in the analysis of Charles Reich's seminal article: Charles A. Reich, ‘The New Property’ (1964) 73 Yale L.J. 733-787.
58.
That assumes the existence of a battery action in the first place. This assumption is misplaced if we take the view that there can be no battery of an excised body part.
59.
It has also been observed that a consent framework could be disempowering in its inability to confer continuing control over an excised tissue: Graeme Laurie, Genetic Privacy: A Challenge to Medico-Legal Norms (Cambridge University Press, 2002) at 312.
60.
Foskett v. McKeown [2001] 1 A.C. 102 at 129 WLR 1299 (HL), per Lord Millet.
61.
Is there no enrichment where the misdirection benefits the transplant surgeon's spouse, child or family member?
62.
In such cases, the complaint is that organs donated to the recipient are lost through their misdirection, not that the recipient's privacy is infringed. Similarly, the donation of organs is statutorily regulated based on the principles of altruism (as in the UK) rather than contracts and markets. Although transplantation treatments are arguably contractual, organ donation is not controlled by the principles of contract since that will encourage the commercialisation disavowed by most organ statutes.
63.
The extreme difficulty of proving causation in body parts litigation is analysed by Larry I. Palmer, supra n. 7.
64.
Dickens supports a property approach to donated organs and observes that in ‘contrasting remedies for negligent mishandling [of human body organs] under property concepts with those under alternative principles of law, informed consent and fiduciary duty principles will have little to offer if they center on physicians' intentions that are undisclosed prior to acquiring the body materials’: Bernard M. Dickens, ‘Living Tissue and Organ Donors and Property Law: More on Moore’ (1992) 8 J. Contemp. Health L. & Policy 73 at 88-89.
65.
Ritter v. Couch , 76 S.E. 428 (W. Va. 1912).
66.
The certified questions were: (1) Whether the applicable provisions of the New York Public Health Law vest the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit sounding in the common law tort of conversion or through a private right of action inferred from the New York Public Health Law? (2) Whether the New York Public Health Law immunises either negligent or grossly negligent misconduct? (3) If a donee can bring a private action to enforce the rights referred to in question (1), can the claimant recover nominal or punitive damages without demonstrating pecuniary loss or other actual injury?
67.
Colavito v. New York Organ Donor Network (No. 3), 8 N.Y.3d 43 at 53 (2006, CANY).
68.
Ibid. , at 53.
69.
Ibid. , at 56
70.
Ibid. , at 57.
71.
Colavito v. New York Organ Donor Network (No. 4) , 2007 WL 1462399, 1 at 3. (2nd Cir. N.Y).
72.
This would arguably lead to a criminal prosecution under s.45 of the Human Tissue Act 2004. There could also be a claim under the Data Protection Act 1998.
73.
The law of negligence does not redress mere mental anguish.
74.
W.P. Keeton et al. Prosser & Keeton on Torts , 5th edn (West Publishing Co., 1988) at 849-868.
75.
Conversion clearly attaches when property given for a particular purpose is used for another purpose: All Cargo Transport, Inc. v. Fla. East Coast Ry Co., 355 So.2d 178 (Fla. 3d DCA, 1987).
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76.
In two cases relating to unapproved or unauthorised test, the claimants lost on all their non-proprietary claims, although a conversion claim was not canvassed: Doe v. Dyer-Goode , 389 Pa.Super. 151 (Pennsylvania Sup. Ct., 1989); Hecht v. Kaplan , 221 A.D.2d 100 (Sup. Ct. New York, 1996).
77.
Washington University v. Catalona 437 F.Supp.2d 985 (Dist. Ct. Missouri, 2006).
78.
Ibid. , at 994.
79.
Ibid.
80.
Ibid. , at 997.
81.
Ibid.
82.
Ibid. , at 1002. An appeal is currently pending in the US Court of Appeals Eight Circuit.
83.
Greenberg v. Miami Children's Hospital Res. Inst. 264 F.Supp.2d 1064.
84.
Emphasis is put on the conversion claim since it was the cause of action that directly raised the issue of property right to body parts.
85.
Greenberg, supra n. 83, at 1074.
86.
Ibid.
87.
Bowman v. Secular Society Ltd. [1917] A.C. 406.
88.
Ibid. , at 436.
89.
For instance, a property rule for donated non-regenerative organs and a no-property rule for regenerative body parts.
90.
In this section, attention is focused mainly on body parts other than organs meant for transplantation.
91.
Fabre provides an excellent philosophical defence of the conscription of cadaveric organs and living body parts: Fabre, supra n. 3, at 73-125.
92.
The majority did not, however, foreclose the possibility of a property-based rule in the future: Moore, supra n. 48, at 493.
93.
Much of this was conceded in the majority judgement: ibid.
94.
Gerald Dworkin and Ian Kennedy, ‘Human Tissue: Rights in the Body and Its Parts’ (1993) 1 Med. L. Rev. 291 at 308.
95.
Jonathan Herring and P.L. Chau, ‘My Body, Your Body, Our Bodies’ (2007) 15 Med. L. Rev. 34 at 54.
96.
Ibid. , at 54.
97.
Ibid. , at 40-42.
98.
For instance, Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on Setting Standards of Quality and Safety for the Donation, Procurement, Testing, Processing, Preservation, Storage and Distribution of Human Tissue and Cells; Council of Europe: Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin, 2002.
99.
Colavito No. 2, supra n. 44, at 225.
100.
Ramirez v. Health Partners of S. Arizona , 972 P.2d 658 (Ariz. 1998).
101.
That is, the period in which they are ‘in limbo’: Goldstein, supra n. 11.
102.
Nwabueze, supra n. 31.
103.
Dworkin and Kennedy, supra n. 94, at 310. © 2008 Sweet & Maxwell and its Contributors
