Biotechnology And The Challenge Of Property (medical Law And Ethics)

BIOTECHNOLOGY AND THE CHALLENGE OF PROPERTY Medical Law and Ethics Series Editor Sheila McLean, Director of the Institute of Law and Ethics in Medicine, School of Law, University of Glasgow The 21st century seems likely to witness some of the most major developments in medicine and healthcare ever seen. At the same time, the debate about the extent to which science and/or medicine should lead the moral agenda continues, as do questions about the appropriate role for law. This series brings together some of the best contemporary academic commentators to tackle these dilemmas in a challenging, informed and inquiring manner. The scope of the series is purposely wide, including contributions from a variety of disciplines such as law, philosophy and social sciences. Forthcoming titles in the series Medical Self-Regulation Crisis and Change Mark Davies ISBN 978 0 7546 4459 0 The Jurisdiction of Medical Law Kenneth Veitch ISBN 978 0 7546 49441 Ethical and Regulatory Aspects of Human Genetic Databases Edited by Bernice Elger, Nikola Biller-Andorno, Alexandre Mauron and Alexander M. Capron ISBN 978 0 7546 7255 5 Altruism Reconsidered Exploring New Approaches to Property in Human Tissue Edited by Michael Steinmann, Peter Sykora, and Urban Wiesing ISBN 978 0 7546 7270 8 Bioequity – Property and the Human Body Nils Hoppe ISBN 978 0 7546 7280 7 Biotechnology and the Challenge of Property Property Rights in Dead Bodies, Body Parts, and Genetic Information REMIGIUS N. NWABUEZE University of Southampton, UK © Remigius N. Nwabueze 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Remigius N. Nwabueze has asserted his moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Nwabueze, Remigius N. Biotechnology and the challenge of property : property rights in dead bodies, body parts and genetic information. - (Medical law and ethics) 1. Donation of organs, tissues, etc. - Law and legislation 2. Genetic engineering - Law and legislation I. Title 344'.04194 Library of Congress Cataloging-in-Publication Data Nwabueze, Remigius N., 1968Biotechnology and the challenge of property : property rights in dead bodies, body parts, and genetic information / by Remigius N. Nwabueze. p. cm. -- (Medical law and ethics) Includes bibliographical references and index. ISBN 978-0-7546-7168-8 1. Biotechnology industries--Law and legislation. 2. Genetic engineering--Law and legislation. 3. Body, Human--Law and legislation. I. Title. K3925.B56N83 2007 344.04'194--dc22 2007005507 ISBN 978-0-7546-7168-8 Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall. Contents Preface Acknowledgements Table of Cases Table of Statutes Introduction vii ix xi xix 1 1 The Nature, Uses and Meaning of Property Introduction The Relations of Property The Characteristics and Forms of Property The Meaning of Property Conclusion 7 7 8 12 24 32 2 Biotechnology and the Property Jurisprudence on the Human Body and Parts Introduction Framework of Analysis: Property, Tort, Consent or Human Rights? Historical Background of the No-Property Rule in Dead Bodies The Dominant Paradigms of Property Nature of Proprietary Interests and Rights Ainsworth’s Case and Biomedical Technology Suggested Routes to Finding a Property Interest in the Human Body Why Not Propert