PROPERTY RIGHTS AND THE HUMAN BODY

property has been described as a "bundle of rights" consisting of the right to possess, to use, to exclude, to enjoy profits, and to dispose. When it comes to property in the human body, one sees various collections of some component rights in this bundle, though never the whole bundle. Moreover, the precise contours of these component rights are often unclear, and depend on the perspective from which one approaches the body.

The perspectives available are two: from inside the body and from outside the body. That is, one can ask: what property rights do I have in my own body, or what property rights do I have in the body of another? With respect to one's own body, the common law, which has been the primary source of property rights, has provided a set of protections that have the effect of granting certain property rights in one's own body, though the law never speaks of these rights as property. Tort law protects us from nonconsensual physical contact and physical invasions. If A punches B in the nose, A is liable for battery. A doctor who fails to get the informed consent of a patient before performing surgery commits a battery. This doctrine implies that the law gives us the right to possess our own bodies and to exclude others from using our bodies. Tort law also prohibits others from unreasonably confining us, through the tort of false imprisonment; giving us the right to direct our own bodies as we see fit. However, the common law has not articulated a clear general position on our rights to profit from our bodies or to dispose of our bodies.

With respect to the bodies of others, our property rights are considerably narrower. The common law gives to the next of kin a "quasi-property" right in the body of the decedent, which consists of the right to possess the body for purposes of burial, to recover damages for the mutilation of the body, and the right to prescribe the manner and place of burial—but not the right to sell the whole or parts of the decedent's body. This is the extent of our common law property rights in the bodies of others, at least as far as these rights have been articulated by American courts. From an early time, English courts apparently have gone further in limiting these rights; william blackstone, in his Commentaries on the Laws of England, asserts that English common law gave no legal validity whatsoever to the master–slave relationship, and thus refused to recognize the claim of an absolute property right in the body of another.

Somewhere between the question of rights in one's own body and that of rights in another falls the issue of abortion. The early common law applied the "quickening" rule, which held the killing of an unborn infant unlawful from the moment it is able to stir in its mother's womb.

The Constitution has played a role in defining the limitations on property rights in the body. Most importantly, the thirteenth amendment prohibits slavery and involuntary servitude, and thus nullifies an individual's claim to have an absolute property right in the body of another or to have given such a right in his own body. The Supreme Court's roe v. wade (1973) decision held that state laws prohibiting abortion may violate the due process clause of the fourteenth amendment, and articulated a rule governing the constitutionality of abortion restrictions that is analogous to the common law quickening rule in that it gives states the greatest freedom to regulate abortion in the final trimester of pregnancy. In Washington v. Glucksberg (1997), the Court held that the Fourteenth Amendment does not imply a protected right to die with the assistance of a physician.

Today, new constitutional issues are being generated by statutes that limit the scope of property rights in the body, usually with the aim of facilitating the procurement and transplantation of human organs. Several states have enacted laws permitting coroners to remove body parts (typically corneas) from a cadaver without the consent of either the deceased or the next of kin. Pursuant to these statutes, several coroners have removed body parts without seeking consent. These removal statutes, and concomitant policies, are inconsistent with common-law quasi-property rights. Several courts have held that these policies violate the due process clause of the Fourteenth Amendment, and Erik Jaffe has suggested that the Fifth Amendment's takings clause should also apply.

Other statutes limiting property rights in the body are those prohibiting the purchase or sale of organs. The National Organ Transplant Act, a federal law, prohibits the purchase and sale of organs for transplantation. Several states have enacted similar statutes, some of them banning purchase and sale for any purpose. Although these laws were enacted on the basis of noble motives (perhaps reflecting the quality-deterioration concerns initially raised, in the context of the blood market, by Richard Titmuss), their ultimate impact is probably harmful. As transplant technology proceeds apace, and the number of suitable organ recipients increases accordingly, the shortage of human organs available for transplantation worsens every year. Allowing certain limited purchase and sale agreements, such as the postmortem transfers proposed by Lloyd Cohen, could alleviate the shortage of transplantable organs without generating the negative consequences envisioned by proponents of the sale bans.

Can or should the Constitution play a role in resolving this growing problem? If the courts were to take a broad view of our property rights in our own bodies, they might hold that statutes banning all contracts for the purchase and sale of body parts constitute takings of private property, just as a statute prohibiting individuals from selling their homes would be a taking. Or a court might find that a sweeping ban cannot survive rational basis review under the due process clause. The question has been unimportant until very recently, because our body parts had little value to others before the advent of transplantation. But we are approaching the day when nearly every one of our organs will have a substantial market value. As this value increases, the deprivations imposed by the sale bans may reach a level comparable to those that have been deemed unconstitutional in earlier cases.

Keith N. Hylton
(2000)

Bibliography

Cohen, Lloyd R. 1990 Increasing the Supply of Transplantable Organs: The Virtues of a Futures Market. George Washington Law Review 58:1–51.

Hylton, Keith N. 1990 The Law and Economics of Organ Procurement. Law & Policy 12:197–224.

——1996 The Law and Ethics of Organ Sales. Annual Review of Law and Ethics 4:115–136.

Jaffe, Erik S. 1990 "She's Got Bette Davis['s] Eyes": Assessing the Nonconsensual Removal of Cadaver Organs under the Takings and Due Process Clauses. Columbia Law Review 90: 528–574.

Munzer, Stephen R. 1994 An Uneasy Case Against Property Rights in Body Parts. Pages 259–286 in Ellen Frankel Paul, Fred D. Miller Jr., and Jeffrey Paul, eds., Property Rights. Cambridge, England: Cambridge University Press.

Scott, Russell 1981 The Body as Property. New York: Viking Press.

Titmuss, Richard 1971 The Gift Relationship: From Human Blood to Social Policy. New York: Pantheon Books.