Is the human body ‘property’?

Property is a term that explains what governs ownership and possession. As Gummow J summarised, it is a “legal relationship with a thing.”[1] What defines property continues to evolve and change with contemporary scientific and medical advancements, where it may have once  described access to material or tangible resources such as estates, land or fixtures now includes personal or intangible property. As property is the relationship between persons and things,[2] it ultimately includes the relationships people have with wealth and the allocation and use of objects that ultimately reflects on the state of economics, and further still the structure of families, politics, as well as society and culture.

Common law regards the protection of property as a fundamental right. While there are restricted entitlements in proprietary rights,[3] William Blackstone stated property consists, “[i]n the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution… so great moreover is the regard of the law for private property, that it will not authorise the least violation of it.”[4] For Blackstone, these personal rights encompass property, security and liberty and all three are fundamental and absolute[5] enabling a person the right to exclude, use and enjoy, and to sell or give away[6] at their own discretion.

The meaning of property and property rights – the legal relationship with a thing – and how that relates to personal rights or private law or “the law that governs the interaction between private individuals”[7] raises the ethical question of whether there is a distinction between people and things. Personal rights embody several protections and enables all citizens no matter their gender or race to own property, and this also includes the rights a person has over their own body and body parts, including abortion and human tissue.

In Moore v Regents of the University of California,[8] Mosk J stated that ‘[o]ur society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona.”[9] Chattel slavery or human trafficking apply similar principles of property law to human bodies, while other forms of modern slavery including both forced sexual and labour exploitation, debt bondage, and organ trafficking raise questions on the definition of property. This assignment will attempt to ameliorate the protections afforded by and restrictions upon personal physical liberty, before and after death and how that relates to property law.

Human Rights and Personal Physical Liberty

The practice of eugenics during the holocaust that sought to advance the genetic quality of society and ultimately resulted in the genocide of human populations led to a global moral outrage that developed universal Human Rights principles.[10] While these universal and indivisible rights ensured the inherent dignity of all people and included civil and political rights, equality and freedoms, as well as economic, social and cultural rights, it also prohibited violence to the human body such as torture, and exploitation such as slavery.[11] Human beings cannot be things; indeed, it is now an “abomination to commodify another human being.”[12]  

Article 9(1) of the ICCPR[13] protects the right to liberty and security of person by ensuring that all people are not subjected to arbitrary arrest or detention. This does not imply that this right cannot be restricted, whereby a person can be detained for the purpose of criminal justice[14] but must still be lawful. Coldrey AJA stated that false imprisonment is, “the intentional and unlawful restraint of the liberty of another person against that person’s will”[15] and the Law Enforcement Act 2002 governs how police officers exercise powers of arrest. In the case of Robinson v State of New South Wales[16] an appellant must be charged at the time of arrest for the purpose of commencing a criminal process, otherwise it is unlawful as a common law offence and a civil wrong in the law of torts for the unlawful restraint of personal physical liberty.  

Immanuel Kant had a similar formulation of universal moral principles with his theory on the Categorical Imperative, a maxim that articulates a universal law tied to one innate, natural right; freedom. John Locke argues that labour is an essential condition of liberty and that property rights must therefore be a natural right where individuals as proprietors of their own body emerges through labour: “[m]an has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.”[17] Property to Kant is an acquired right and therefore the principles underlying the acquisition of property and of ownership must conform to and coexist with civil consent, giving rise to tensions between private and public interest.

In his lectures on ethics, Kant states that a person cannot be property as he is not a thing.[18] This discussion came from his moral views of sexual exploitation where human nature is subordinated when their sexual inclinations view objects of their desire as ‘things’. “A person cannot be a property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property. Accordingly, a man is not at his own disposal. He is not entitled to sell a limb, not even one of his teeth.”[19]

Body Parts Before and After Death

Australia does not have a Bill of Rights and while some state and territories do have a human rights charter,[20] it is considered that Australia does not need explicit protections despite the Constitution explicitly writing several protections such as the acquisition of property on unjust terms.[21] This is because of the inheritance of the Common Law system from the United Kingdom and further still the influence of the Magna Carta of 1215[22]  that enable the Australian judicial system such as the High Court and legislature to adequately protect the rights and responsibilities of all those within its jurisdiction.  

In contemporary society, the underlying moral principles that shape our public interest is shifting Notwithstanding the advancement of modern technology and medicine, there have also been some incredible changes to the way we use our body that the conflict between traditional moral and religious authority with these contemporary changes begin to emerge. Women can now take contraceptive pills, fertilise embryos and have abortions, however aligned with these changes are questions such as whether aborting an embryo or foetus is ethical. Ethicist Peter Singer who defends the rights of women to have an abortion believes that the foetus is not a ‘person’[23] (and therefore does not have the same claim to life as a person) that caused great controversy particularly in the United States amongst the Christian community.

The concerns around fertility treatments and reproductive technologies led to the Federal Parliament passing the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 that established a framework that regulated human cloning and assisted reproduction. With the rise of stem cell research particularly, the Independent Committee to Review Human Cloning and Embryo Research Legislation was formed to regularly investigate the evolving nature of the science and provide the Federal Parliament with recommendations for new and existing laws.[24]

With undisclosed removal of human organs and organ trafficking, the harvesting of body tissue, and the removal of bodily tissue after a person has died without informed consent, legislation, policy directives and guidelines in NSW[25] have emerged to respond to these evolving bioethical concerns, and draft by the Australian Law Reform Commission’ 1977 Report Human Tissue Transplants[26] largely enabled this to take place and articulated the scale of disapproval by the Australian public on the sale of human organs.[27] Under the Human Tissue Act 1983 human tissue is includes “an organ, or part, of a human body and a substance extracted from, or from a part of, the human body.”[28] While donations of tissue by living persons is regulated within the act, it does not include ova, semen or foetal tissue.[29] Nevertheless, the alienation of buying and selling body parts particularly for financial gain is prohibited[30] as the principle articulated in the ARLC report found that the only acceptable compensation would be reimbursement for expenses related to the operation.[31] While you can register to donate your body parts after death, there are further restrictions such as not excluding particular groups of people.

The Assisted Reproductive Technology Act 2007 regulates the ethical concerns related to assisted reproductive technology and prevent the commercialisation of human reproduction. Under the Act, it is illegal for a woman in NSW to store or use her dead partner’s sperm to conceive without his written consent.[32] and while a person may consent to the removal of sperm or ova from their deceased spouse, you must be the next of kin and your spouse must express consent. However, semen or ova that have been removed from a deceased person cannot be used in NSW in assisted reproductive technology unless the deceased person gave written consent specifically for this use.

In Doodeward v Spence[33] as the two-headed child had undergone an embalming process the question of whether bodily remains after death is property is raised. While a person has limited rights after death such as pre-arranging funerals or donating organs for transplants or medical research, in Calma v Sesar[34] the court said that while the parents of a deceased child had equal rights to the body of their child for purposes of burial, they did not ‘own’ the body. There are also provisions such as the Coroners Act 2009 (NSW) that enables a coroner the right to possession of bodies or parts of bodies when an autopsy is required for suspicious deaths.

Conclusion

There are a number of rights that a person has over their body and body parts both in life and after death. If self-dominion is a proprietary right that links freedom with ownership, paradoxically slavery and other forms of exploitation challenge the notion of what ownership and property is when we talk about the human body.


[1] Yanner v Eaton (1999) 201 CLR 351, 365–366. Also see s 7(1) of the Fauna Conservation Act 1952 (QLD).

[2] Felix Cohen, Dialogue on Private Property (1954) 9 Rutgers LR 357, 362.

[3] B Edgeworth, The Numerus Clausus Principle in Australian Property Law (2006) 32 Mon LR 387.

[4] William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) Book 2.

[5] Ibid.

[6] Milirrpum v Nabalco (1971) 17 FLR 141, 171.

[7] Brendan Edgeworth et al, Sackville & Neave Australian Property Law (Lexis Nexus, 11th ed, 2021) 25

[8] (1990) 793 P2d

[9] Ibid.

[10] UN General Assembly, “Universal Declaration of Human Rights” United Nations, 217 (III) A, 1948, Paris, art 3.

[11] Somerset v Stewart (1772) 98 ER 499

[12] M Davis and N Naffine, “Are Persons Property? Legal debates about property and personality, Ashgate, UK 2001 (1-3)

[13] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, article 9(1).

[14] UN Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 130 (2003) [1].

[15] R v Huynh (2006) 165 A Crim R 586

[16] [2018] NSWCA 231

[17] John Locke, Second Treatise Chap. V. Of Property. Section 27.

[18] Kant: Lectures on Ethics (Hackett Classics)

[19] Nicole Gerrand, ‘The Misuse of Kant in the Debate about a Market for Human Body Parts,’ Journal of Applied Philosophy, Vol. 16, No. 1 (1999), pp. 59-67

[20] Human Rights Act 2004 (ACT), Charter of Human Rights & Responsibilities Act 2006 (VIC), Human Rights Act 2019 (QLD).

[21] Section 51(xxxi) of the Australian Constitution.

[22] Zachary Gorman, Magna Carta: The Search for the Source of Freedom, Australian Scholarly Publishing (2021)

[23] Practical Ethics, 2nd ed. p 182

[24] Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006

[25] Anatomy Act 1977; Coroners Act 2009 (NSW); Human Tissue Act 1983 (NSW); Human Tissue Regulation 2015; Public Health Regulation 2012. Also see Prohibition of Human Cloning for Reproduction Act 2002.

[26] Australian Law Reform Commission, Human Tissue Transplants, Report No 7 (1977).

[27] Ibid., 85 ¶174.

[28] §4 Human Tissue Act 1983 (NSW)

[29] Ibid. §2.

[30] See Skene, Loane, “Arguments against People Legally ‘Owning’ their Own Bodies, Body Parts and Tissue” (2002) 2 Maquarie Law Journal 165.

[31] L Haberfield, “The Transplantation of Human Fetal Tissue in Australia: Abortion, Consent and Other Legal Issues” (1996) 4 Journal of Law and Medicine 144, 162.

[32] Chapman V South Eastern Sydney Local Health District [2018] NSWSC 1231.

[33] (1908) 6 CLR 406.

[34] [1992] NTSC 17; (1992) 106 FLR 446.

2 thoughts on “Is the human body ‘property’?

    1. John Locke would agree. He believes that labour is not only an essential condition of liberty, but that what this labour produces – the “work of his hands” – is his property, and therefore property itself is a ‘natural’ right where individuals as proprietors of their own body emerges through labour. I don’t think this is too accurate, and agree with Kant. Property is not a ‘thing’ and our bodies are not property that we own (i.e. slavery is an abomination, unnatural and completely immoral). Property is an acquired right and therefore the principles underlying the acquisition of property and of ownership must coexist with civil (moral) consent.

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