Question: How does the Common Law look at (a) the body and (b) property as it might relate to the body or body parts, cells or cellular information?
Have you ever stopped to consider what happens to the blood, biopsy or similar sample you give in a hospital setting, or even in your doctor's surgery? In particular, have you ever stopped to ask: do I still own the sample? Probably, like most people, you would dismiss the question; you gave the sample for a diagnostic test and, your diagnosis is the extent of your interest in the sample's fate per sae. But how would your view change if, on closer examination of the consent form, your doctor had assumed all rights to your sample? Add to this the real possibility of the sample being added to a tissue bank at the hospital where you received treatment. Then assume that a researcher extracts part of your DNA from the sample, only to find that is has a valuable medical application; they earn millions in patent royalties, while you the patient get nothing directly in return. Judicial statements about the sanctity of the body, along with the insistence from most jurists that it may not be classified as property, suggest that the researcher does not own the tissue upon which they build their economic gain, but does this broad statement of principle meet the modern realities of gene science and commerce? While aiming to acknowledge and balance public and private interests, my principal objective with this thesis is to argue for an individual's property rights in their body.