This is a very interesting question of law.
People who have never read anything to do with this issue are most likely going to dismiss it with a ‘Of course I do. I own my body. How can that even be a question?’
And to an extent they are right. For instance, I cannot force a person to donate an organ against his / her wish. Similarly I cannot stop someone from smoking even if that is’t good for their health. Further, I cannot force a pregnant woman to either abort or carry on with her pregnancy against her wish.
All these and many such examples do tell us that we own our body. Or to be precise, we have a free will to decide what happens with our own bodies.
But my question is a little different.
Say you have appendicitis and your appendix is excised by the doctor. You come back home and recuperate. You surely don’t go back to the hospital and ask your organ back.
The question therefore is, do you have property rights in your own body? Particularly tissues that are excised.
Suppose moving ahead, you come to know that the doctor used your appendix to create a viable biotechnological product. Got it patented and is now economically exploiting the same earning millions of dollars.
Do you have a remedy?
Something like this happened in a case in US long back. (Moore v. Regents of the University of California)
The law in most countries is silent on this issue. If property rights are declared in human body, the next obvious question would be exactly what kind of rights are we talking about.
Because property in itself means nothing. It is just a bundle of rights.
It is a little ironic, that a person enjoys property rights over their own photograph but not over their excised tissues.
If the doctor were to use my excised tissue, I don’t have any remedy whatsoever against him. For what right do I say has he violated? What right do I have over excised body tissues?
Legal jurisprudence and myriad philosophers have reiterated that we have proprietary rights in our own body.
Thomas Hobbes goes on to say that, “Of the things held in propriety, those held dearest to man are his own life and limbs; and in the next degree, in most men, those that conjugal affection and after them riches and those means of living.”
According to John Locke “every man has a property right in his own person.”
You will find countless such quotes and references.
On the other hand it can be argued that –
Upon the removal from a person, human bodily material would be statutorily or judicially deemed as res nullis; it would become a corporeal movable property owned by no one. Under the classical definition of res nullis, ownership would be acquired by the first person who took possession of the tissue.
So much for philosophical arguments.
If we look at the rights associated with property we will find that they are the following –
1. Right to Use
2. Right Of Exclusion
3. Right of transfer
In case of body, we have all the three rights with the third one closely governed by the state. (Transplantation of organs Act).
But the law is silent on the above three rights in case of excised tissues and it would be extremely interesting to know what the Supreme Court would say if a person is to sue the hospital and demand his tissues back!