Speaker: Professor Loane Skene, Professor of Law, Faculty of Law, University of Melborne
Abstract: Some academics have argued that people should have a legal right of ‘ownership’ or ongoing control in relation to their excised bodily material. However that is not the law. People do not legally ‘own’ their bodies, organs and tissue and they are therefore not entitled to be ‘rewarded’ for the use of their body parts or tissue, or compensated if their bodily material is used without their consent. Legally, human bodily material has not been regarded as ‘property’ and if anyone has legal rights to possess, or control, or even sell such material, that right generally arises from ‘work and skill’ being undertaken on it, not from any rights over the material itself.
Recently, however, a limited exception to the ‘no property in human tissue’ principle has been recognised. In cases where men had deposited their semen for freezing before undertaking cancer treatment and the semen has later been lost, the men have been held, ‘for the purposes of a claim in negligence’ to have ‘ownership of the sperm which they had ejaculated’. The reason was that, when the sperm was deposited, ‘the sole object … was that, in certain events, it might later be used for their benefit’ (Jonathan Yearworth and others v North Bristol NHS Trust *2009+ EWCA Civ 37 at *45+ para (f)).
These cases raise questions about the implications of this argument in other areas of the law relating to excised bodily material. Are there any circumstances in which human bodies, organs, tissue, and cell lines might also be considered subject to limited proprietary rights in favour of the people from whom they came? Or will the principle for semen deposits be confined to those cases?’
Biography: Professor Loane Skene LLD (Melb), LLM (Mon), LLB (Hons) (Melb), is a Professor of Law in the Melbourne Law School and an Adjunct Professor in the Faculty of Medicine Dentistry and Health Sciences at the University of Melbourne. She is a Member of the Australian Health Ethics Committee of the National Health and Medical Research Council and she has served on numerous federal and state advisory committees, especially in relation to genetics and the law.