Search

TABLE OF CONTENTS I. INTRODUCTION 958 II. THE CONCEPT OF OWNERSHIP IN SEPARATED BODY PARTS 962 A. The Recognition of Separated Body Parts as Property as a Necessary Prerequisite for [...], Since the time of Moore v. Regents of the University of California, it has become a well-established and widespread view that a person, when their separated body parts are misappropriated, is forced to limit themselves to fiduciary and other non-proprietary claims against those who violate the bodily inviolability of their separated parts. Now, with the filing of a lawsuit in defense of the rights in body parts of the victim of racial discrimination, Henrietta Lacks, the judicial system has an opportunity to justify itself by adopting a different perception of rights in human body parts. This Article focuses on the fundamental similarity between separated human body parts and other property, which creates a basic possibility for them to be owned. It argues that a person has ownership of their separated body parts and provides a critical analysis of other theories of rights in the human body, which results in establishing that the concepts that do not refer to the right of ownership entail infringement of human rights and the inability to restore their interests to the fullest extent. Only a clear adherence to the idea of ownership in body parts will protect the memory of the deceased Mrs. Lacks and prevent her rights and those of her descendants from being trampled upon, while at the same time opening the way and setting a precedent for the protection of the rights of others in a similar situation.

We are living in a challenging era when people are being deprived of the rights to their bodies that they have won through centuries of vehement struggle for liberty. This unfortunate truth is valid not only with regard to rights to the body while alive, but also concerning the right to dispose of one's body in the event of death, and the root of this is the failure of the legal system to reflect prevailing social values. This Article will analyze the various options for selecting persons authorized to dispose of a corpse through the prism of the social sciences. It will scrutinize the basics underlying the state's choice in favor of either the deceased's relatives or non-blood loved ones and demonstrate the depth of the disregard for the deceased's will in determining the posthumous destiny of their own body. Ultimately, this Article will propose a model for a radical revision of a person's right to dispose of their own dead body, the heart of which will be the concept of the abstract subject of ownership. This new concept will, for the first time, justify a logically consistent mechanism explaining how a person's right to their body is capable of surviving the death of its owner and continuing to operate despite the absence of a concrete owner. [ABSTRACT FROM AUTHOR]

Since the dawn of time, the life of humankind has marched hand in hand with death and its core manifestation that heralds its presence on Earth--the human corpses. Although death is a natural and inevitable companion of our lives, the law has thus far devoted scant interest to the integration of the cadaver into the established systematics of objects and subjects of rights and to the fundamental theoretical justification of such integration, the corollary of which is that dead bodies stand in a gray zone and in an ontological legal vacuum. The purpose of this Article is to clarify the legal regime of the corpse. The present Article will examine the prospects of recognizing a corpse as a person and the feasibility of characterizing it as an interestholder, demonstrating the logical fallibility of this construct and its salient riskiness for the whole concept of human personality. It will also reveal that other theories attempting to surmount the frailties of the corpse-as-aperson doctrine by conferring an intermediate status between person and property on the cadaver, not only fail to minimize the number of insoluble conceptual quandaries, but also inherit the shortcomings of the two previous dogmatic approaches, and therefore cannot offer a viable alternative to these views. Accordingly, this Article will advance the legal and supra-legal rationale for ownership of a deceased body. In the meantime, utilizing the example of the landmark case of WTC Families for a Proper Burial, Inc. v. City of New York, it will be shown that the traditional Anglo-Saxon view of ownership, stemming from archaic and erroneous ideas of Ancient Rome, is impotent to ensure proper regulation of rights to corpse and may inflict considerable distress on the relatives of deceased persons. As an alternative to the prevailing doctrinal opinion, the authors will employ the theory of abstract ownership, which is free from the flaws typical of the traditional concept of ownership and represents a better system of rights over the corpse, in which interests of the deceased's relatives will enjoy adequate legal redress. [ABSTRACT FROM AUTHOR]

Nowadays, given the considerable growth in medical and other scientific technologies that enable the utilization of human body parts, the need for human biomaterials, of which the corpse may be one of the primary potential sources, is fairly acute. This Article presents a reconsideration of the legal status of, and rights to, the dead body. It describes, from a comparative perspective, the evolution of legal thought from a total failure to recognize property rights in the cadaver to the gradual incorporation of the corpse into the discourse of property law. It critically scrutinizes all the drawbacks of the so-called no-property rule and competitive advantages that the granting of property rights in the dead body can yield. It further substantiates the concept of abstract ownership in a cadaver, bringing about a logically consistent single lifetime and posthumous ownership right with which an individual may mobilize economic potential of his or her body while alive and dispose of his or her corpse posthumously. Finally, the Article will thoroughly analyze the ways of acquiring property rights in the dead body, demonstrating how abstract ownership may harmonize them and eradicate their inconsistency. [ABSTRACT FROM AUTHOR]

The principle of non-commercialization, which prohibits trade in separated human body parts, has long been firmly embedded in many European legal orders and has become an integral part of them. However, many new uses for human biomaterials have now been discovered, and the need for them has reached a historical climax. This paper aims to explain the main tenets of non-commercialization theory, including such principles as human dignity and need to protect human's health, and to show that these categories have so far been understood in a very one-sided and visceral way, and largely in contradiction to their true spirit. We will not dwell on a critique of the existing approach, but will propose an instrumental approach to human health based primarily on the will of the individual. At the end of this paper, we will describe possible legal constructs through which the market for separated human body parts can function, and the outcomes of adoption of one or another model. [ABSTRACT FROM AUTHOR]