6 ms·

Property Rights in the Human Body (2013)

41 points by nwatson 8y ago

gurusblogger 8y ago
hi
nwatson 8y ago
I was astounded to hear in the Radiolab podcast episode [1] that I do not own my own body or its parts. (If you listen to the podcast, the section on body/body-part ownership is just one of the several sections so you'll need to look for it.) The legal systems in the UK, USA and elsewhere avoid the question in part due to slavery's legacy. The submitted article [0] and podcast episode [1] outline that generally it appears: * people have rights to sell their own blood and skin tissue (but not other body parts), but never had property rights over those materials in the first place * companies that buy blood and skin, and who come to possess other body tissue, do under circumstances retain property rights over that tissue * there are many strange corner cases with germ line cells, embryos, transplanted organs, etc. One strange example from the podcast ... if you yourself withdraw your own blood into a vial and store the vial at home, a person breaking into your home that takes the vial of blood cannot be charged with theft of the blood itself since it never was yours -- they may be charged with breaking and entering, but not theft. On the other hand, if you sell your own blood to a company, and then manage to take it back without permission, you are a thief since the company has property rights over your blood. The implications in the podcast were astounding ... the article does a decent job discussing as well, but a transcript of that section of the podcast would have been a better post (can't find one). [0] http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-body/ http://thestudentlawyer.com/2013/07/12/property-rights-in-th... [1] https://www.wnycstudios.org/story/asking-friend https://www.wnycstudios.org/story/asking-friend
- sharemywin 8y ago
  Property rights would be come a real slippery slope though. The right to sell/rent your body. Sounds a lot like prostitution and slavery. How would you delineate which parts you own and which ones you can't sell?
  - TomMckenny 8y ago
    The fact that I can not own parts of my body but an organization can, sort of undermines any claim that the current rules exist out of fears of slippery slopes to slavery.
    - deogeo 8y ago
      It's bizarre - if corporations are people, then surely the converse is true as well?
      - menzoic 8y ago
        Roses are flowers. Not all flowers are roses.
        salawat 8y ago
        Um... I think you just kind of fell down a set of logic stairs there amigo. While your and GP posts were valid, this is a case of valid reasoning being applied to unsound premises in that a corporation is not granted these property rights through personhood, but via it's being a corporation. This is one of the things that makes me spit every time I think of conceptual train wreck that was Citizens United. Corporations were not meant to be people. They were logical constructs with just enough personhood to distinguish the economic institution from the people making it up in the eyes of the law, such that higher risk ventures could be more easily undertaken through pooling of resources, and distribution of risk. That means, it is a false assumption to think of a corporation as Person+. It's more a case of being a !Person. Frankly, the entire idea of property rights sort of breaks down in light of possession being 9/10's of the law w.r.t your own body. As a free agent, you can do what you want. Just... Understand the additional risk brought on by the legal system rapidly backpedaling away if you do something outside the few clearly established guidelines, and other people with no interest in testing potential legal waters that may destroy them will have very little in the way of external incentive to help you do it. One of the things most uncomfortable about a common law system is how precedent in unrelated areas can composite together to create a law where no intent to have such a thing was ever established.
- defen 8y ago
  > * companies that buy blood and skin, and who come to possess other body tissue, do under circumstances retain property rights over that tissue Are there special rules about who can buy blood and skin? Otherwise why can't I just sell my blood to my friend and then immediately buy it back, thus acquiring property rights to it?
- deleted 8y ago
  [deleted]
- waffle_ss 8y ago
  Not too long ago I heard a quip by Joe Rogan that you might find interesting. DMT is a Schedule I controlled substance in the USA, meaning it's illegal to be in possession of it in any amount. Yet it's a chemical that we all produce naturally in our own bodies (endogenous) in small amounts. So in a strict sense we're all guilty of a felony for being "holders" of this illegal substance.
- onetimemanytime 8y ago
  My take: If it was called property, you could legally sell your kidney, and they do not want that for a lot of reasons. However, the govt protects you and me by other laws. If someone ties you up, takes your kidney etc etc, they will be charged with worse crimes than stealing property (kidney). Once in a hospital, they have to destroy the tissue, fluids etc so you sign at the dotted line, or is implied, that after that it's theirs to destroy. You can't walk around with your amputated arm for example. Or use for research, if that's the case. Personally, I think that the patient should consent first and then cut into the profit or be paid a certain amount if his "body" is commercialized.
- lostlogin 8y ago
  > On the other hand, if you sell your own blood to a company, and then manage to take it back without permission, you are a thief since the company has property rights over your blood. I wonder what happens if you buy it back off the company, then it gets stolen?
jf 8y ago
Site is down, here's the most recent copy from the Internet Archive: https://web.archive.org/web/20180809061136/http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-body/ https://web.archive.org/web/20180809061136/http://thestudent...
tedk-42 8y ago
Incredible uninteresting and irrelevant. Doesn't deserve to be on HN. If a hair falls off my body and onto the ground, does it count as littering?
molticrystal 8y ago
>However, it was held that Mr Moore’s spleen was not his property so, while he could claim for breach of fiduciary duty and a lack of informed consent, he could not claim for the consequences of the conversion. It was the researchers who were held to own the cell line over which they had been granted a patent because of their application of skill to Mr Moore’s original cells. That makes me wonder if skill is a defense and how one would demonstrate skill. While many of the examples were international, this one was California based, so I looked up what skill is in a legal dictionary with US examples: >Practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner and with readiness and dexterity. [1] So if you could demonstrate knowledge of the procedure and were familiar with some equipment manuals, could you make a claim? If you lacked equipment and resources, would that be a defense for the other side? About approved manner, as there are biohackers, and the ability to work in other countries or perhaps partner up with a licensed company, I wonder if any of those would work as a defense. [1] https://thelawdictionary.org/skill/ https://thelawdictionary.org/skill/
bookofjoe 8y ago
"The test of whether or not you own something is whether you can sell it." I can't remember where I read this or who said it, but it's a good rule of thumb.
- dmichulke 8y ago
  Sell it or its products. How about sperm, eggs, hair, blood?
- mannykannot 8y ago
  To own something is to control its destiny. What gets sold when you sell something is that control.
- cazum 8y ago
  This test has some interesting edge cases though: For example, I can own 200lbs of crystal meth, and when the police come to arrest me for it, they will have no problem claiming I own it. But according to this rule, I don't actually own the drugs because those same cops will prevent me from selling it.
  - thaumasiotes 8y ago
    The cops will also be happy to take your meth as soon as they see it, so the argument that you do "own" it isn't that strong.
    - geggam 8y ago
      If you can prevent them from taking it do you own it ? Seems your argument over ownership comes down to force ?
      - alasdair_ 8y ago
        >Seems your argument over ownership comes down to force ? ALL arguments over ownership come down to force. This is how we wound up having nations - some group had more force than some other group. It continues to this day - war exists as the most obvious example of this but softer forces, such as the ability to demand and enforce sanctions also count. In a wider sense, ALL law comes down to force, since without the ability to enforce(!) it, law is meaningless. Put much more simply: people with nuclear weapons don't have to pay their parking tickets.
rayiner 8y ago
It’s not really that odd. Anglo law has several different areas of law, of which property is one. Humans have special status, so things to do with people and their bodies falls under the umbrella of torts. If someone punched your dog, you sue them for trespass to chattels. (Because dogs are property.) But if someone punches you, you don’t sue them for trespass to your body. You sue them for battery, which is a tort especially for injuries to people.
dmichulke 8y ago
Your body is your property because only you are allowed to determine what happens to it. Now saying it's not property because it's special is like saying your car is not your property because it's special (e.g. with respect to traffic law). It can be both: special and your property. The whole thing is a relic of a weird system of law.
geggam 8y ago
Sign a contract selling your body to an LLC you form. Use the system against this madness.
MayeulC 8y ago
> This is clearly an unsatisfactory situation for three key reasons: the woman wishing to be pregnant has been denied her chance of motherhood, the embryos have been destroyed and a considerable amount of money has been wasted. This whole argument shocked me. I don't know if the author follows a logical fallacy, or something else is at play, but first of all, I fail to recognize how an embryo would be part of your own body. Secondly, I really have issues following her argumentation that consent from her then-partner isn't needed to transfer and make use of the embryos. The article then goes on to argue that very position, which seems to be a bit out of place. I don't really follow the arguments that: > Biologically, a man’s role is limited to the act of fertilisation and from that moment onwards, the woman bears the burden of gestation through to labour and child birth. Conferring ownership of the embryo to the woman could go some way to address this imbalance. Given that for IVF, a woman's contribution to an embryo is exactly the same as a man's (one gamete), and the burden of gestation hasn't taken place.
- justtopost 8y ago
  Given that it is not an independent entity, it is no different than a tumor other than its division properties. You can take the argument either way. Please leave your idealogical biases at home.
  - MayeulC 8y ago
    Well, I did try to leave any kind of bias aside, so my apologies if I didn't succeed. I hope I didn't misunderstand you, but > it is not an independent entity This really is debatable, depending on the term "entity". Given that this is in-vitro fertilization, an embryo here is likely a couple dozen cells grown from two gametes, in a test tube. It is physically distinct from the parents. My remark was going in the same direction as yours. What "schocked" me is that some parts of the linked article read as though the author forced an ideology/views upon the reader. I was expecting to get raw facts from this article, so that surprised me a bit. Regardless of what I think of the author's viewpoint (which I didn't state, by the way), I expressed having trouble logically following the arguments that are being used there, and suspected that it might be due to a logical fallacy the author could have been leaning on to close the reasoning gaps (and if that was the case, I was curious to know which). But I admit it could also be an issue on my side.

41 points by nwatson 8y ago

I was astounded to hear in the Radiolab podcast episode [1] that I do not own my own body or its parts. (If you listen to the podcast, the section on body/body-part ownership is just one of the several sections so you'll need to look for it.) The legal systems in the UK, USA and elsewhere avoid the question in part due to slavery's legacy. The submitted article [0] and podcast episode [1] outline that generally it appears: * people have rights to sell their own blood and skin tissue (but not other body parts), but never had property rights over those materials in the first place * companies that buy blood and skin, and who come to possess other body tissue, do under circumstances retain property rights over that tissue * there are many strange corner cases with germ line cells, embryos, transplanted organs, etc. One strange example from the podcast ... if you yourself withdraw your own blood into a vial and store the vial at home, a person breaking into your home that takes the vial of blood cannot be charged with theft of the blood itself since it never was yours -- they may be charged with breaking and entering, but not theft. On the other hand, if you sell your own blood to a company, and then manage to take it back without permission, you are a thief since the company has property rights over your blood. The implications in the podcast were astounding ... the article does a decent job discussing as well, but a transcript of that section of the podcast would have been a better post (can't find one). [0] http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-body/ http://thestudentlawyer.com/2013/07/12/property-rights-in-th... [1] https://www.wnycstudios.org/story/asking-friend https://www.wnycstudios.org/story/asking-friend

sharemywin 8y ago
Property rights would be come a real slippery slope though. The right to sell/rent your body. Sounds a lot like prostitution and slavery. How would you delineate which parts you own and which ones you can't sell?
- TomMckenny 8y ago
  The fact that I can not own parts of my body but an organization can, sort of undermines any claim that the current rules exist out of fears of slippery slopes to slavery.
  - deogeo 8y ago
    It's bizarre - if corporations are people, then surely the converse is true as well?
    - menzoic 8y ago
      Roses are flowers. Not all flowers are roses.
      - salawat 8y ago
        Um... I think you just kind of fell down a set of logic stairs there amigo. While your and GP posts were valid, this is a case of valid reasoning being applied to unsound premises in that a corporation is not granted these property rights through personhood, but via it's being a corporation. This is one of the things that makes me spit every time I think of conceptual train wreck that was Citizens United. Corporations were not meant to be people. They were logical constructs with just enough personhood to distinguish the economic institution from the people making it up in the eyes of the law, such that higher risk ventures could be more easily undertaken through pooling of resources, and distribution of risk. That means, it is a false assumption to think of a corporation as Person+. It's more a case of being a !Person. Frankly, the entire idea of property rights sort of breaks down in light of possession being 9/10's of the law w.r.t your own body. As a free agent, you can do what you want. Just... Understand the additional risk brought on by the legal system rapidly backpedaling away if you do something outside the few clearly established guidelines, and other people with no interest in testing potential legal waters that may destroy them will have very little in the way of external incentive to help you do it. One of the things most uncomfortable about a common law system is how precedent in unrelated areas can composite together to create a law where no intent to have such a thing was ever established.
defen 8y ago
> * companies that buy blood and skin, and who come to possess other body tissue, do under circumstances retain property rights over that tissue Are there special rules about who can buy blood and skin? Otherwise why can't I just sell my blood to my friend and then immediately buy it back, thus acquiring property rights to it?
deleted 8y ago
[deleted]
waffle_ss 8y ago
Not too long ago I heard a quip by Joe Rogan that you might find interesting. DMT is a Schedule I controlled substance in the USA, meaning it's illegal to be in possession of it in any amount. Yet it's a chemical that we all produce naturally in our own bodies (endogenous) in small amounts. So in a strict sense we're all guilty of a felony for being "holders" of this illegal substance.
onetimemanytime 8y ago
My take: If it was called property, you could legally sell your kidney, and they do not want that for a lot of reasons. However, the govt protects you and me by other laws. If someone ties you up, takes your kidney etc etc, they will be charged with worse crimes than stealing property (kidney). Once in a hospital, they have to destroy the tissue, fluids etc so you sign at the dotted line, or is implied, that after that it's theirs to destroy. You can't walk around with your amputated arm for example. Or use for research, if that's the case. Personally, I think that the patient should consent first and then cut into the profit or be paid a certain amount if his "body" is commercialized.
lostlogin 8y ago
> On the other hand, if you sell your own blood to a company, and then manage to take it back without permission, you are a thief since the company has property rights over your blood. I wonder what happens if you buy it back off the company, then it gets stolen?

jf 8y ago

Site is down, here's the most recent copy from the Internet Archive: https://web.archive.org/web/20180809061136/http://thestudentlawyer.com/2013/07/12/property-rights-in-the-human-body/ https://web.archive.org/web/20180809061136/http://thestudent...

tedk-42 8y ago

Incredible uninteresting and irrelevant. Doesn't deserve to be on HN. If a hair falls off my body and onto the ground, does it count as littering?

molticrystal 8y ago

>However, it was held that Mr Moore’s spleen was not his property so, while he could claim for breach of fiduciary duty and a lack of informed consent, he could not claim for the consequences of the conversion. It was the researchers who were held to own the cell line over which they had been granted a patent because of their application of skill to Mr Moore’s original cells. That makes me wonder if skill is a defense and how one would demonstrate skill. While many of the examples were international, this one was California based, so I looked up what skill is in a legal dictionary with US examples: >Practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner and with readiness and dexterity. [1] So if you could demonstrate knowledge of the procedure and were familiar with some equipment manuals, could you make a claim? If you lacked equipment and resources, would that be a defense for the other side? About approved manner, as there are biohackers, and the ability to work in other countries or perhaps partner up with a licensed company, I wonder if any of those would work as a defense. [1] https://thelawdictionary.org/skill/ https://thelawdictionary.org/skill/

bookofjoe 8y ago

"The test of whether or not you own something is whether you can sell it." I can't remember where I read this or who said it, but it's a good rule of thumb.

dmichulke 8y ago
Sell it or its products. How about sperm, eggs, hair, blood?
mannykannot 8y ago
To own something is to control its destiny. What gets sold when you sell something is that control.
cazum 8y ago
This test has some interesting edge cases though: For example, I can own 200lbs of crystal meth, and when the police come to arrest me for it, they will have no problem claiming I own it. But according to this rule, I don't actually own the drugs because those same cops will prevent me from selling it.
- thaumasiotes 8y ago
  The cops will also be happy to take your meth as soon as they see it, so the argument that you do "own" it isn't that strong.
  - geggam 8y ago
    If you can prevent them from taking it do you own it ? Seems your argument over ownership comes down to force ?
    - alasdair_ 8y ago
      >Seems your argument over ownership comes down to force ? ALL arguments over ownership come down to force. This is how we wound up having nations - some group had more force than some other group. It continues to this day - war exists as the most obvious example of this but softer forces, such as the ability to demand and enforce sanctions also count. In a wider sense, ALL law comes down to force, since without the ability to enforce(!) it, law is meaningless. Put much more simply: people with nuclear weapons don't have to pay their parking tickets.

rayiner 8y ago

It’s not really that odd. Anglo law has several different areas of law, of which property is one. Humans have special status, so things to do with people and their bodies falls under the umbrella of torts. If someone punched your dog, you sue them for trespass to chattels. (Because dogs are property.) But if someone punches you, you don’t sue them for trespass to your body. You sue them for battery, which is a tort especially for injuries to people.

dmichulke 8y ago

Your body is your property because only you are allowed to determine what happens to it. Now saying it's not property because it's special is like saying your car is not your property because it's special (e.g. with respect to traffic law). It can be both: special and your property. The whole thing is a relic of a weird system of law.

geggam 8y ago

Sign a contract selling your body to an LLC you form. Use the system against this madness.

MayeulC 8y ago

> This is clearly an unsatisfactory situation for three key reasons: the woman wishing to be pregnant has been denied her chance of motherhood, the embryos have been destroyed and a considerable amount of money has been wasted. This whole argument shocked me. I don't know if the author follows a logical fallacy, or something else is at play, but first of all, I fail to recognize how an embryo would be part of your own body. Secondly, I really have issues following her argumentation that consent from her then-partner isn't needed to transfer and make use of the embryos. The article then goes on to argue that very position, which seems to be a bit out of place. I don't really follow the arguments that: > Biologically, a man’s role is limited to the act of fertilisation and from that moment onwards, the woman bears the burden of gestation through to labour and child birth. Conferring ownership of the embryo to the woman could go some way to address this imbalance. Given that for IVF, a woman's contribution to an embryo is exactly the same as a man's (one gamete), and the burden of gestation hasn't taken place.

justtopost 8y ago
Given that it is not an independent entity, it is no different than a tumor other than its division properties. You can take the argument either way. Please leave your idealogical biases at home.
- MayeulC 8y ago
  Well, I did try to leave any kind of bias aside, so my apologies if I didn't succeed. I hope I didn't misunderstand you, but > it is not an independent entity This really is debatable, depending on the term "entity". Given that this is in-vitro fertilization, an embryo here is likely a couple dozen cells grown from two gametes, in a test tube. It is physically distinct from the parents. My remark was going in the same direction as yours. What "schocked" me is that some parts of the linked article read as though the author forced an ideology/views upon the reader. I was expecting to get raw facts from this article, so that surprised me a bit. Regardless of what I think of the author's viewpoint (which I didn't state, by the way), I expressed having trouble logically following the arguments that are being used there, and suspected that it might be due to a logical fallacy the author could have been leaning on to close the reasoning gaps (and if that was the case, I was curious to know which). But I admit it could also be an issue on my side.