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Biotechnology and the new property regime in human bodies and body parts.

Remediation of unjustified interference with a dead body or body part has often been problematic for courts in Canada, England, Australia, and the U.S.A., probably due to the absence of some clearly crafted conceptual underpinning for such judicial intervention. This situation has exacerbated the vulnerability of the human body and parts, which have witnessed more intense invasion by numerous biotechnological applications. Three objectives of this paper put its thematic framework in bold relief: First, to suggest an analytical structure for examining recent medical research scandals, in which some medical researchers were alleged to have illegally harvested body parts and organs from deceased persons, as witnessed in the United Kingdom, Canada, Australia, and the U.S.A. Second, to consider the appropriate remediational legal framework for the conversion or detention of biomedical inventions, like scientifically preserved cadavers for medical education or exhibition, frozen embryos, frozen human eggs and sperm, stored tissue samples, transplantable organs, and cultured human cell lines. Three, to suggest that the propertization of the human body and parts probably gives the fullest protection to the grave against its despoliation, and provides the desired deterrence against biotechnological invasion of the human body. To realize the above objectives, the paper started with a historicization of dead bodies jurisprudence, which showed that despite U.S.A.'s fictional and parochial quasi-property rule and Australia's fairly advanced property rule in dead bodies, many jurisdictions still follow the dominant and ecclesiastically influenced English no-property rule in dead bodies and parts. However, efforts were made to highlight recent judicial developments in England, Canada, and the U.S.A., which potentially promise to consign the general no-property rule in dead bodies and parts to its historical past. With little historical support of a property-rule in the human body, the paper sought a refuge in property theories. Examination of the reified concept of property, and the bundle of rights theory suggested that they might not be of any significant relevance in the rationalization of a proprietary interest in the human body and parts. This is hardly surprising since most property theories were cast in the mould of common law, which hardly had the opportunity to address itself to the human body and parts. Using biotechnology as a contemporary historical fact, it was suggested that current jurisprudence on cadavers and body parts has become anachronistic, and ought to respond to recent biomedical and economic realities. Consequently, the paper suggested four analogical ways that might recommend themselves to judicial creativity in finding a property interest in the human body and parts.