Live Donation of Human Body Parts: A Case for Negotiability?

Human Organ Transplants Act 1989 s.2(l) and (3). Similar legislation can be found in Canada, for example the Ontario Human Tissues Gift Act 1972, which has made commerce in human tissue a crime.

Human Organ Transplants Act 1989 s.1.

Surrogacy Arrangements Act 1985 s.2.

Andrews , “My Body, My Property” (1986) 16 Hastings Center Report 28 at p.36.

See Comment “Retailing Human Organs Under The Uniform Commercial Code” (1983) 16 J. Marshall L.R. 393.

See Crossley Vaines' Personal Property 5th ed. (1973) at p.39.

Under s.61(l) of the Sale of Goods Act 1979, property is defined as: “… the general property in goods, and not merely a special property”.

Chalmers M. D. , The Sale of Goods Including the Factors Act 1889 (1890) at p.93.

Emson H. E. , “The ethics of human cadaver organ transplantation: A biologist's viewpoint” (1987) 13 Jo. of Medical Ethics 124 at p.125.

See Honore A. M. “Ownership” Chapter 5 of A. G. Guest Oxford Essays in Jurisprudence (1961) 130 at p. 137.

Compare unscapio which protected a bona fide possessor. This meant that for a short time there were two titles but when the periods of unscapio were short this was not of much significance. See P. Stein, Legal Institutions: The Development of Dispute Settlement (1984) at pp.157–158.

See Honoré supra fn.7.

See Bingham J. W. , “The Nature and Importance of Legal Possession” (1915) 13 Michigan L.R. 535.

The transient value of chattels together with the difficulty of proving title makes the chain of title particularly short.

Chalmers, the draftsman of the Sale of Goods Act 1893, was influenced by real property concepts when he came to codify the implied undertakings regarding title. He made quiet possession supplementary to the general ownership guarantee, viz the right to sell together with freedom from encumbrances. Such a division does not have a common law basis. For a general discussion here see N. Franzi “The Sale of Goods Implied Undertakings as to Title” (1980) 14 Univ. of Western Australia L.R. 208.

See generally Matthews P. , “Whose Body? People as Property” (1983) 36 Current Legal Problems 192; P. Skegg, “Human Corpses, Medical Specimens and the Law of Property” (1975) 4 Anglo-Am L.R. 412.

Supra.

See generally Eisenberg R. S. , “Proprietary Rights and the Norms of Science in Biotechnology Research” (1987) 97 Yale L.J. 177.

Longmore D. , Spare Part Surgery (1968). See also Kennedy I. “The donation and transplantation of Kidneys: Should the law be changed?” (1979–80) 5 Jo. of Medical Ethics 13.

In Germany W. , business people with severe cash flow problems are asked to “bank” their kidneys. According to a story in The Independent (28 October 1988) Count Rene Adelmann von Adelmannsfelden obtained the names of recent bankrupts and wrote to them in the following way:.

“Dear Bankrupt: You are now a social leper driven to take out loans or live on social assistance. But there is an alternative. Sell a kidney through me to a transplant patient. Even if the recipient does not survive you do — both medically and economically”.

The reward — 80,000 DM ($26,500). In this respect he founded the Mutual Benefit Association for Organ Donation and Human Replacements.

Calabresi Melamed , “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv. L.R. 1089.

Supra at p.1112.

Supra at p.1112.

See Dworkin , “The Law Relating to Organ Transplantation in England” (1970) 33 Michigan L.R. 353.

Caplan A. , “Blood, Sweat, Tears, and Profits: The Ethics of the Sale and Use of Patient Derived Materials in Biomedicine” (1985) 33 Clinical Research 448 at p.450.

See generally Kant I. , General Introduction to the Metaphysic of Morals (1797).

See Hegel G. , Philosophy of Right.

This is discussed by Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law” (1977) 11 Law and Sociology Rev. 571.

See for example Kuhn T. , The Structure of Scientific Revolution 2nd ed (1970) and more recently, Rorty R. , Consequences of Pragmatism (1982).

See Ruddin M. J. , “Market Inalienability” (1987) 100 Harv. L.R. 1849 at p.1897.

“Without the bright line, arguments delineating the market realm on the basis of the subject/object distinction disintegrate. If the person/thing distinction is not a sharp divide, neither is inalienability/alienability. There will be a gray area between the two, and hence the outer contours of both personhood and inalien abilities based on personhood will remain contested”.

See here especially Demsetz, “Towards a Theory of Property Rights” (1967) 57 Am. Econ. Rev. 347.

In 1933 the Germans began killing “defectives” of various kinds because they were costly to society — “useless eaters”. The pragmatic cost-benefit approach could be seen in the Nazi mathematical text “Mathematics in the Service of National Political Education”. See L. Alexander “Medical Science Under Dictatorship” [1949] New England Journal of Medicine — July 14. For a recent discussion on eugenic euthanasia in Germany during the Nazi era leading to the extermination of “asocial” persons including Jews, Gypsies, Poles, Catholic and Protestant dissenters, Soviet prisoners of war, see R. J. Lifton The Nazi Doctors (1982). In Part III of this book entitled “The Psychology of Genocide” the author maintains that each doctor who eventually became adapted to the Auschwitz ethics did so through a breakdown of the balance of life and death instincts within him, with a massive bias towards death — in effect it was conceived of as an abattoir of humanity. It is worth noting, however, that euthanasia was neither legally sanctioned nor officially permitted during the Nazi regime except for the years 1939–1941 when it had Hitler's explicit support — but it was never legally ratified. There was therefore never any question of doctors abiding by the law in operating the euthanasia programme — they were merely administrative orders reflecting political will. See here M. H. Kottow “Euthanasia After The Holocaust — Is It Possible?” (1988) 2 Bioethics 58.

See here for example U.S. v Garber 607 F.2d 92 (5th Cir.) 1979.

R v Welsh [1974] R.T.R. 478. In R v Wood 8 March 1989 the defendant was convicted of the theft of jars of embryos from a hospital.

Titmuss, The Gift Relationship (1970) infra.

See for example, Sapolsky Finkelstein “Blood Policy Revisited — A New Look at ‘The Gift Relationship’” (1977) 46 Public Interest 15.

Dukeminier J. , “Supplying Organs for Transplantation” (1970) 68 Michian L.R. 811 at p.858.

Consumer Credit Act 1974 s.68.

See here generally Evans M. “Organ donations should not be restricted to relatives” (1989) 15 Jo. of Medical Ethics 17.

Loc. cit. fn.33.

202 Cal. App. 3d 1230; [1988] Cal. App. LEXIS 666.

In this case the plaintiff, a patient at the UCLA Medical Centre underwent a splenectomy as treatment for a very rare form of leukemia. Without the patient's consent or knowledge, the plaintiff's physician allegedly used the plaintiff's blood and bodily substance to create a cell line called “Mo”. The University of California successfully patented the cell line and its derivative products. See Diamond v Chakrabarly (1980) 447 U.S. 303.

See Eisenberg Supra at fn. 18.

Rosenberg L. , “Using Patient Materials for Production Development: A Dean's Perspective” (1985) 33 Clinical Research 452.

For a general discussion here see Macleod J. K. , Consumer Sales Law (1989) at 17.02.

See Carter v Inter-Faith Hospital of Queens (1969) 304 N.Y.S. 2d. 97.

Compare the dissenting judgment of George J. in John Moore v The Regents of The University of California et al loc. cit. fh.41.

Compare Kennedy and Grubb, Medical Law (1989) at p. 1020:.

“Since the 1982 Act [The Supply of Goods and Services Act 1982]… identical terms will be implied however the contract is categorised.” See below.

(1954) 123 NE 2d. 792.

Supply of Goods and Services Act 1982 s.13.

Sale of Goods Act 1979 s.14.

See here Matthews P. , “The Body as Property” (1983) 36 Current Legal Probs 193.

Report of the Committee of Inquiry into Human Fertilisation and Embryology (the Warnock Committee) Cmnd 9314 (1984) at 11:24. For the difficulties posed by questions of inheritance that arise in this context see Warnock at 10:14 and 10:15. See also Smith G. P. “Australia's Frozen Orphan Embryos: A Medical, Legal and Ethical Dilemma” (1985) 24 J. Fam. Law 27.

Professor Ian Craft, formerly head of the in vitro fertilisation unit at the Humana Hospital Wellington in London, has devised prototype consent forms asking what couples would like to have done with their frozen embryos in the event of divorce or death. One of the questions was:.

“If your personal circumstances were to change so that there was irrevocable marital breakdown or death by accident of both partners and there were frozen embryos being stored on your behalf, which of the following options would you prefer to be implemented? (a) That the embryos be thawed so that they did not survive; (b) That they be made available for research purposes; (c) That they be donated to other infertile couples.”.

Option C was chosen by 64 per cent of those responding. But, in answers to a later question on what they would prefer if one partner died, only 33 per cent wished their decision to remain the same. Sixty-four per cent wanted the frozen embryos made available for the use of the surviving partner. See V. McKee “Whose embryo is it?” The Times April 3rd, 1989.

Loc. cit. fn.41.

Abandonment is not lightly inferred. Thus in Hibbert v McKiernan [1948] 2 K.B. 142 there was a conviction of theft of golf balls lost on club premises.

The Use of Fetuses and Fetal Material (the Peel Report) 1972. An interesting problem that arises here is the case of a daughter whose father suffered from Parkinson's disease who has heard about an experimental technique that used fetal brain tissue implants to allieve and arrest this disorder. She want to be artifically inseminated with her father's sperm so that she could abort the resulting fetus and use its brain tissue to help the father. See here J. F. Desmond “Should We ‘Harvest’ Fetal Tissue?” (1988) 14 The Human Life Review 71. Note also that hematopoietic stem cells from fetal marrow and liver have been used to treat genetic diseases and radiation sickness. For a general discussion here see Cefalo R. C. Engelhardt H. T. “The Use of Fetal and Anencephatic Tissue for Transplantation” (1989) 14 The Journal of Medicine and Philosophy 25.

See Winfield Jolowicz on Tort 12th ed (1987) by W. V.H. Rogers at pp.500–504.

Loc. cit. fn.41.

The first recognisable claim for tracing relief appeared in Kirk v Webb 24 Eng. Rep. 41 (1698) where relief was denied. The first reported Chancery case in which a tracing argument appeared to succeed was Burdett v Willett 23 Eng. Rep. 1017 (1708) in which the Chancellor required a factor to remit to his principal the economic product of consigned goods. See also Whitecomb v Jacob 91 Eng. Rep. 149 (1710). See J. Dawson, Unjust Enrichment (1951). The precise boundaries of the law of restitution are unclear. It is most commonly understood as a body of judge made rules developed originally in both the early Anglo-American law and equity courts. See J. Dawson, “Restitution without Enrichment” (1981) 61 B.U.L. Rev. 563, 564. Many of the doctrines such as quantum meruit and quantum valebant developed as fictional outgrowths of established bodies of law, e.g. fictional contracts or in the case of the constructive trust as a fictional trust. As early as 1888 commentators sought to unify the applications of these doctrines under the mantle of unjust enrichment. See Ames, “The History of Assumpsit” (1888) 2 Harv. L.R. 53. Cf. the position in England where no generalised right to restitution in cases of unjust enrichment is recognised by the courts. See e.g. Orakpo v Manson Inv. Ltd (1978] A.C. 95.

[1967] 2 A.C. 46.

Compare Maudsley , “Proprietary Remedies for the Recovery of Money” (1959) 75 L.O.R . 234 especially pp. 246–247; Babefeni, “The Propretary Remedies of Tracing” (1973) 2 Anglo-Am. L.R. 198 especially at p. 213.

Compare D. A. Oesterle , “Deficiencies of the Restitutionary Right to Trace Misappropriated Property in Equity and in U.C.C. s. 9: 306” (1983) 68 Cornell L.R. 172 at p. 185:.

“Tracing often overstates the defendant's gain from the misappropriation and discriminates unreasonably between victims of misappropriation; between the defendant's creditors and the victims of the misappropriation, and between innocent third parties who receive property from the defendant.”.

See Greenwood v Bennett [1973] 1 Q.B. 195; Torts (Interference with Goods) Act 1977, ss. 3 and 6.

Human Organ Transplants Act 1989 s. 2 (3).