I, Me and Mine - Who owns your body?

So, you think you own your body? Well, if you do – then you have been abandoning your rights in your hair (when you unintentionally dropped them in the shower); your dandruff (you unwillingly dropped on the dinner table last night); your nails (you cut and decoratively manicured last month)! You lost your property and the rights in it. What if someone files a legal case against you seeking reimbursement for the medical treatment of a disease they acquired from your property, I mean, your body/body material not appropriately managed? Would you still want to own your body?!

May be not.

There are various debates around the concept of ‘ownership’ of body and/or parts of body. There are three principle questions that are most sort after by medico-legal philosophers who have ventured this area:

a) whether there is any property in body and
b) If there is any property in body _ who owns it?
c) If someone else owns our bodies, what is the extent of that ownership?

The post summarizes arguments presented for and against these questions and concludes with a reasonable take of the author on each of these.

Initially, it is obvious to state that there is no property in the body, any-body. It is merely an existence of the a state of matter; like the birds, the animals, the trees. With the advancements of medicine this state of matter could be preserved for a longer duration that its natural existence. The fact that the legal framework around property rights in the Body aims at protection of this ‘state of matter’ (whether body, separated body material or body part/organs) reflects the presumption of bodies being possessed and owned.

There is no owner of the body, but there may be claims of ownership in the ‘state of the body or being’. Let’s look at it this way, the owner of the body is no one, but the body itself and not the soul that possess the body nor the brain that controls the voluntary and non-voluntary functions. Here I agree with the words of Prof. Rao who in his works, states that there is a ‘person’ akin to the body. This ‘person’ takes decisions for the body till the time living beings own his/her body. For after death issues, Prof. Harris’s argument, that ‘there is no one to own it because there is no one living in it anymore’ supplements the thought.

Consolidating the above two, it is clear that the extent of ownership would be improbable to be defined in clear words and do more damage if defined in blanket words. Considering this, it would not be incorrect to state that the question, whether there is ownership in body or not can be answered only after taking into account the number of claims that are made for a particular body.

The claim can arise from the number of interactions that a body has with doctors, researchers, society at large etc. For instance, doctors who use a diseased organ may have intellectual property rights on that body part and research; or a segment of the society (people requiring transplants) may have a right in the organs of a terminally ill patient. In the case of Re Kelly, the house of lords stated that ownership arises with the addition of ‘something’ to the existing state of matter.

Does one own body or the dignity in the body? It is considered disrespectful to treat body like property. Justice Gage in the case of AB v. Leeds noted it to be ‘inappropriate’ to discuss the terms of who owned the body of the dead children. Hence the principles of autonomy coupled with dignity and respect for life pulls away from the idea of property in body.

Nevertheless, if we move forward with the argument of there being property rights, the next big question will be – what is the extent of this ownership?

Let me first lay down the spectrum of Ownership in this context. Logically, there can be ownership at three stages:

Before life (Fetus) ___________________During Life __________________Post life/After Death

Since the debate on ‘when life begins’ (inception of pregnancy? or 18 weeks fetus? or born person?) and ‘ends’ (death, dying and/or terminal illness) is not a settled one, the above stated spectrum may be questioned. These may not be the absolute defined stages for discussing ownership. I would choose not to dwell into the debate of beginning of life, personhood, and status of a foetus, status of cadavers, and status of patients in vegetative state and make this an essay of life and death, rather, for purposes of weighing the merit of the ‘extent of ownership’ argument reinforce belief in the spectrum drawn above. Also, for ownership reasons, the definition of life and death can be easily understood in the following sense – given that there has to be an existing ‘body or material or organ’ – life will be defined with the detaching of the umbilical cord (that is separating autonomy of the mother and the baby). Let us look at some of the ways in which extent of ownership can be defined.

Divide, split and own: There is a technical problem in owning of complete bodies. Consider this, though the sale of sperm, hair etc is acceptable because they are separated body materials, the same is not possible with complete/whole bodies – that is against the dignity of the body which is not a commodity of sale. Hence in case of divide, split and own there is a consideration for an argument of ownership and its extent.

Medical Research and ownership entitlements: The Utility theory of Bentham proposes the use of bodies for the purpose of the larger good of the society in medical research is driven towards ownership rights of the society and state in the body of all as it further medical advancements for all. Raz supplements Bentham in the way that he states, one body is the means and one body is the end. That is use of one body for the benefit of the other body. But he also states that for the sake of the medical research and development one cannot undermine the dignity, autonomy of body used in the process. The Helsinki declaration also furthers this idea by placing human dignity over use of bodies for medical research.

One body, many owners: In case of a surgery mentally ill or incapacitated person or children (like in the case of Bristol or AlderHey) the ownership rights dwindle. The doctor or the surgeon has a right as per the law to take decisions in the ‘best interest of the patient’, hence the baton of taking decisions passes on from one body to another by a process established by law. Hence, isn’t the law presuming an extent of ownership by enacting laws that do not let minors or incapacitated patients take decisions for their own body? Moreover, by making guardians, doctors, physicians take decisions for these ‘minor/incapacitate bodies’, the law is defining extents of ownership.

Concluding remark: The ownership of the one carrying the body is founded in the possession of the body. I agree with Shildrcik when he states, bodies are ‘leaky’. They are so because autonomy, which is akin to exercising ownership, is not stable in that one body at all points on the spectrum drawn above.

[Note: This blog was earlier published here by Rimali Batra - http://blog.medicallaw.in/i-me-mine-who-owns-your-body/]