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Abstract

Ownership is the bundle of rights that includes allowing a person or entity to use and control an object as property. As biomedical science advances, we should consider whether human biological material should be recognized as property. Three main issues should be considered when discussing ownership of the human body and human biological material: human dignity, the conﬂict between participant-donor and researcher-medical professionals, and transnational research.

Introduction

Ownership is the bundle of rights that includes allowing an individual or entity to use and control an object as property. Rights of ownership often involve rights to possess, use, destroy, consume, trade, bequeath, alienate, and gain income from the property. Honoré identiﬁed 11 standard incidents in the liberal concept of full individual ownership. The incidents are (1) the right to possess, (2) the right to use, (3) the right to manage, (4) the right to the income, (5) the right to the capital, (6) the right to security, (7) the right to transmissibility, (8) the incident of absence of term, (9) the duty to prevent harm, (10) the liability to execution, and (11) the residuary character (Honoré 1987). Most legal provisions that deﬁne ownership are encompassed in Honoré’s concept of ownership. For example, in South Korea ownership is deﬁned as using, taking proﬁts from, and disposing of the owned things within the scope of the law set forth in Article 211 of the Korean Civil Act. Furthermore, Honoré’s standard incidents of property are very useful to understanding the nature of ownership, as ownership is not a unitary concept. Rather, ownership can be better understood when recognized as a bundle of rights relating to the owned object. Owning property is unique, because it can help us exercise our free will.

History And Development

The right to possession is considered a basic right by John Locke (Lock, Two Treatises on Government, Part II, 7). The institution of property has two major functions: governing the use of things and allocating social wealth (Harris 1996). With qualiﬁcations, an owner can use that which is owned as he or she desires without interference. Governing the use of things includes not only possession, usage, and management but also having a capital interest in the things owned. However, governing the use of things is not unlimited. A person’s ownership should be harmonized with the ownership of others. In analyzing ownership or property rights, the meaning and effects can be seen when focusing on the impacts on and between the owner and others. In general, an owner can possess, use, gain income, and so forth without another person’s interference. Nonowners cannot take these actions relating to property without the owner’s consent. However, there are some restrictions on ownership, even considering a very pure type of private ownership.

A person can do anything he or she desires if he or she lives alone or if his or her behaviors do not affect others. However, everyone lives among others, and therefore, one person’s behavior can have an effect on the lives of others or on society. Thus, people should consider how their acts affect social rules, moral rules, and even laws. The exercise of one’s rights should not cause harm or violate another’s rights. National security, maintaining law and order, and public welfare are usually considered the primary reasons for restricting ownership rights. However, the reasons for restrictions and their practical applications are different depending on the country or social situation and the object in question.

Typically, ownership is categorized into three types according to who holds the rights: individuals (private ownership), the state (public ownership), or some combination of the two (Christman 1998). We can categorize ownership according to the objects owned as well: tangible or intangible. Properties such as smartphones, computers, or cars are examples of tangible items. Traditionally, ownership or property rights are applied to these items. However, we also consider ownership of intangible items, such as intellectual property. The rights that make up speciﬁc ownership are deﬁned by the type of object and the nature of ownership in question. Property means “① collectively the right in a valued resource such as land, chattel, or an intangible… These rights include the right to possess and use, the right to exclude, and the right to transfer, or any external thing over which the rights of possession, use, and enjoyment are exercised” (Black’s Law Dictionary 2014). The meaning of property in the ﬁrst category is very similar to that of ownership.

Most scholars discuss property with regard to the economic system. Private property is a characteristic of a capitalist economic system. Public property is a characteristic of a socialist economic system (Christman 1998). Even if the two economic systems or types of property are deﬁned differently, most policies in different countries around the world make for a mixed system. This means that there are no or very few pure free market systems and no or few pure socialist systems.

Ethical Dimensions

Ownership And Distributive Justice

There are limited resources in the world. If someone owns something, then in general others cannot have it. As long as we recognize ownership as a private right, then we should be concerned with how limited resources should be distributed. There have been many theories on how to distribute limited goods – according to need, desert, natural right, virtue, ability, achievement, or some other standard. Most agree that private property will inevitably create an unequal distribution of goods. However, there is a difference of opinions regarding whether unequal distribution can be justiﬁed. Egalitarians criticize the private property system on these grounds. However, private property defenders think that this kind of inequality does not damage social justice, because private property is justiﬁed.

When we discuss distributive justice with regard to ownership, two questions should be discussed: “the question of who should own what just is the question of distributive justice, and the question of what rights citizens ought to be afforded over their property – what ownership structure ought to be adapted for particular owners” (Christman 1998).

If we agree that an individual lives among other people in the world and that private property is part of a social system that is related to others, we can also agree that there are social roles in the private property system. In considering the relationship between ownership and the principles of distributive justice, we should consider various combinations of incidents of ownership according to the nature and social characteristics of the goods concerned. This is the case when we discuss ownership of human biological material. The incident of right to income is usually related to the allocation of social wealth, that is, distributive justice.

Ownership Of Human Biological Material

Ethics is a unique ﬁeld and has its own academic method of analysis. Further, law has its own method of analysis. However, ethics and law share several similar characteristics. Ethics and law are normative, as both establish standards for human behavior. They are also different in many ways. The standard of ethics may be different from that of laws, depending on the issue under discussion. Unlike ethical blames, legal penalties may bring severe consequences.

However, in newer areas of study such as the biomedical ﬁeld, ethical considerations and legal considerations sometimes are mixed up. Ethics also affects legal decisions in at least two aspects: legislation and the interpretation of law. Sometimes, traditional ethical standards or legal frameworks may need to further develop in newer ﬁelds of study. Arguments pertaining to the ownership of human biological material are aspects of such a newer ﬁeld. We can further develop our analytical standards and frameworks in this area by examining the relevant legal cases and ethical considerations.

Can A Person Own Human Biological Material?

When we discuss the ownership of human biological material, we must consider two issues: whether human biological material should be recognized as property, and which remedy can be used in the case of property infringement if we recognize it as such.

Traditionally, most commentators have not admitted the human body into the realm of property or ownership. Human dignity is one of the most popular reasons supporting this opinion. Human beings have dignity. Most international declarations and the constitutional laws of almost every country deﬁne human dignity. Human dignity is not considered a conditional principle and should be respected by all. However, there are many deﬁnitions of human dignity, and scientiﬁc discoveries and knowledge, especially in the ﬁelds of human genetics and neuroscience, continue to increase. If we acknowledge ownership of the human body, we may sell or give our bodies to others. These kinds of acts cannot be permitted, although donating organs or tissues may be allowed. In most countries, the human body or human biological materials cannot be sold, and a human corpse is not considered an object that can be sold. There have been some arguments that resist recognizing the human body or human biological material as an object of ownership. One such argument is raised by Rao. He argues that property law severs the human body from the person who owns it. He seems to prefer an old standard of property theory – the concept of property as stewardship (Rao 2007).

With the developments in science and medicine, there are debates regarding whether a separated human body part or human biological material can be an object of ownership. Traditionally, a human corpse has not been recognized as an object of theft because there are no property rights pertaining to the human body. However, the Court of Appeals in R v Kelly and Lindsay held that “where a corpse, or part of a corpse, had undergone a process or application of human skill designed to preserve it for medical or scientiﬁc examination; it acquired a value and became property for the purpose of the Theft Act 1968.” According to this point of view, the separated part of a human body might become an object of property by the application of human skill. In Yearworth v North Bristol NHS Trust, the Court of Appeals recognized ownership interests in separated human biological material based on two key incidents of ownership. In Yearworth, six cancer patients stored their semen according to clinicians’ advice prior to their chemotherapy for possible future use. However, the semen that was stored by the hospital was thawed and expired. The Court of Appeals recognized that the six men had two incidents of property. First, they had the right to manage their semen according to the provisions in the U.K.’s Human Fertilisation and Embryology Act 1990. Second, the Court of Appeals held that the six men had the right to use the semen because “by their bodies, they alone generated and ejaculated the sperm, and the sole object of their ejaculation was that it might later be used for their beneﬁt.”

Moore v Regents of the University of California is the most widely recognized case that issued a judgment regarding whether parts of the human body that were separated from the person could be objects of ownership. In this case, the majority of the Supreme Court of California rejected a patient’s claim that banned his physician’s use of his spleen cells. Since Moore v the

University of California, there has been contentious debate regarding whether human biological material that is separated from the human body can be recognized as an object of property rights.

Certain legislative acts have provisions that regulate separated human biological material. In the U.K., the Human Tissue Act 2004 governs the removal, storage, and use of human biological material from deceased persons and the storage and use of human biological material from living persons. The most important consideration in obtaining human biological material is appropriate consent. According to the Human Tissue Act 2004, consent is required for the removal, storage, and use of human biological material for a particular purpose, including obtaining scientiﬁc or medical information that may be relevant to another person or for research in connection with disorders, the proper functioning of the human body, and so forth (Human Tissue Act 2004, Section 1, Schedule 1). The Bioethics and Safety Act and the Safety, Management, Etc. of Human Tissue Act in South Korea have some provisions that require informed consent from the human subjects who provide genetic information, genetic material, human tissue, and so forth. The person who can give consent for the removal, storage, and use of a person’s biological material for a particular purpose empowers the person or the institute that wants to remove, store, or use that biological material. To this extent, we can agree that a person who donates his or her biological material has the ability to manage that part of his or her body. According to the Acts referenced above, once the person gives consent, certiﬁed or licensed authorities acquire the legal ability to store (possess) and use that biological material for particular purposes. The Human Fertilisation and Embryology Act 2008 in the U.K. and the Bioethics and Safety Act in South Korea also allow the management and use of human reproductive material. According to the Bioethics and Safety Act Article 24(1), “when a medical institution producing embryos intends to extra ova or spermatozoa in order to produce embryos, it shall obtain written consent … from the donor of the ova or spermatozoa.” According to the Bioethics and Safety Act in South Korea, research on residual embryos or ova is permitted if the researchers or institutes meet certain legal requirements. To this extent, the person who gives consent to use his or her reproductive material has the legal right to manage that reproductive material. However, in using human biological material, a person should consider the respect for human dignity and the protection of human biological materials as subjects. Withdrawing consent by the donor prevents researchers or institutes from continuing to store or use the donated biological material. This means that the person who gave the informed consent still has rights similar to managing that material even after his or her donation.

The Legal Rules Of Ownership Of Human Biological Material

Many people think that human beings are different from other living entities or things. Human beings have dignity. We should respect each other as humans and respect each other’s dignity. Humans cannot be an object of trade. From this point of view, the human body and biological material cannot be categorized as a “thing” that can be the proper object of property or ownership. There is a difference between people and things, and the legal and moral status of a person differs in quality from that of a thing.

No reasonable person should think that a living human being can be owned by others. In addition, we can agree that parts of the human body that are not separated from a living person cannot be owned by others. However, whether a person owns his or her body while he or she lives is another problem. Traditionally, the living human body cannot be owned even by that living person.

Whether separated parts of the human body can be objects of ownership is a different issue. Many have argued that separated parts of the human body could not be objects of ownership. This idea is primarily based on the following: even if a piece of human biological material is separated from a person, it still relates to that person, and if treated as a thing, human dignity may be harmed. However, some commentators have admitted separated parts of the human body into the realm of property. If part of a human body was separated from the person, it is external to that person. Separation transforms the human biological material into a thing and facilitates the creation of ownership. This idea has been expressed as the so-called work and skill exception by some courts.

There has been an increasing need to recognize human biological material as property. The most important reasons are (1) to establish legitimate entitlements to possess human biological material for biomedical research, (2) to facilitate prosecution for theft, and (3) to permit possession of sperm for the purpose of in vitro fertilization. The “work and skill exception” would be the most widely accepted rationale for recognizing human biological material as property. In R v Kelly and Lindsay, one defendant, Kelly, was an artist and the other defendant, Lindsay, a junior technician at the Royal College of Surgeons. They were prosecuted for the theft of body parts from the college to make modules for sculptures. The Court held that “parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.” In AB and Others v Leeds Teaching

Hospital NHS Trust, the court held that “to dissect and ﬁx an organ from a child’s body requires work and a great deal of skill… . The subsequent production of blocks and slides is also a skillful operation requiring work and expertise of trained scientists.. .. the [hospital] pathologists became entitled to possess the organs, blocks, and slides.” Some courts have sustained this idea, and some even extend its application.

Some cases have challenged the “work and skill exception.” The most notable case is the Yearworth and Others v North Bristol NHS Trust case in the U.K. In this case, as mentioned above, stored sperm was irrevocably damaged. The Court of Appeals held that the semen could be considered property and the men who deposited semen before chemotherapy had grounds for an action in bailment. There are similar cases such as Bazley v Wesley Monash IVF Pty Ltd, and Jocelyn Edwards; Re the estate of the late Mark Edwards from Australia.

The “work and skill exception” has raised some questions. The “work and skill exception” was developed from the premise that human biological material cannot be an object of ownership in principle but it might become property if work and skill are applied to it. If we agree, a res (a thing belonging to someone) is created from a res nullius (a thing belonging to no one). Though there are things that do not belong to anyone, this does not mean that they are not objects of ownership. In the “work and skill exception,” if work and skill are applied, an object that no one could have owned becomes an object that someone can own. The ﬁrst issue with this is that when “A” cannot be an object of ownership, it has a different meaning from when “A” is owned by no one. Second, if we accept this idea, the only person who cannot own human biological material is the individual that is the source of the material. Third, if a person’s organ or tissue does not belong to him or her, how can it be legitimately donated? Fourth, what degree of work and skill should be applied to transform a res nullius into a res?

The Incidents Of Property Rights In Human Biological Material

The particular set of property rights varies in terms of the type of property in question. In the majority of cases, we enjoy ownership without any limitations or conditions. We can usually use or sell our houses or cars as we want to. However, our property rights can sometimes be limited. We should manage human biological material without harming other people or the environment. We can receive interest from our capital, but the highest rate of interest is usually limited by law. Even if we recognize human biological material as an object of property, we should consider which collection of ownership entitlements would be recognized in that material.

Most agree that we cannot sell or buy a human body or human body parts. The purchase and sale of human biological material is prohibited in most countries. In South Korea, a person who trades a residual embryo or ova can be prosecuted criminally. Further, trading human organs or tissues is prohibited in many countries. However, when we recognize human biological material as an object of ownership, it is different from when we discuss the ban on the trade of human biological material. Even if human biological material is not an object of all incidents of ownership, we can recognize it as property as long as the exercise of that ownership does not harm other people or human dignity. Rather, it might be more desirable and more effective to protect human dignity and the autonomy of the individual if we recognize human biological material as property because biomedicine is developing rapidly. Questions coming to the fore include which incidents of ownership apply to the ownership of human biological material and what are the limitations of this ownership? Our efforts should be concentrated on the social limitations of ownership rather than on whether human biological material is considered property.

The ﬁrst incident of ownership, the right to possess, can be fully enjoyed by the person himself or herself. A person can possess his or her body without any limitations as long as he or she lives. The second incident, the right to use, might be limited under some conditions. We have long used human biological material for the purpose of biomedical research. When we use it, we should consider that particular research may be harmful to human dignity or the subject’s autonomy. We should also consider the environmental factors or biohazards, especially in genetic research.

The right to manage also might be recognized within limits. When we manage or store human biological material for the purpose of biomedical research, we should protect the donor of the material and consider the human dignity and autonomy of that individual. Issues pertaining to modifying genes should also be considered when we discuss the right to manage human biological material. Currently, most diseases or physical and mental traits are considered the result of the interplay between genetic factors and environmental factors. However, some diseases or physical and mental traits are caused only by genetic factors. In single-gene diseases, we have been trying to modify the defective genes in order to treat them. Some have suggested that we can modify our genes to enhance our abilities, such as our level of intelligence or athleticism. Should these kinds of gene modiﬁcations be allowed? Where should we draw the line? Many people agree that we should not try to modify the germ cells’ genetic components. Genetic modiﬁcation for the purpose of enhancement has been met with stern objections. However, the distinction between disease and enhancement is not always clear, and the line is constantly changing. The genetic modiﬁcation of somatic cells might be permitted. Some attempt gene therapy to treat genetic diseases. Cosmetic surgery is another example related to the right to manage. The history of cosmetic surgery shows the changing deﬁnition of medical treatment and disease; if it is connected to the enhancement of abilities, we face an ethical dilemma in deciding whether it should be permitted.

The right of income might be recognized but in a very limited range. The right to capital consists of the power to alienate the thing and the liberty to consume, waste, or destroy whole or part of that thing (Honoré 1987). We can destroy parts of the human body after using them for biomedical research or for other purposes as long as it does not harm other people or human dignity. We can bury or cremate deceased bodies. However, destroying an entire living human body holds a different meaning. In some instances, it means suicide or euthanasia. Even if we have the right to capital, do we have the right to commit suicide or cause death? This is a complex issue where ownership, the autonomy of the individual, and human dignity are intertwined.

We own our bodies as long as we live. After death, we no longer own our bodies in principle. However, we can decide whether we want to donate our organs or tissues for the purpose of transplantation or biomedical research. Does the inheritor always follow the donor’s decision? How long is the donor’s decision effective? How long does a donor have to withdraw informed consent? When we consider the incident of transmissibility and the incident of absence of term, we should investigate these issues.

The duty to prevent harm as well as the liability for execution both are the limiting factors of ownership. As discussed above, these social limitations are very important in examining ownership issues regarding the human body or human biological material.

Who Has Ownership?

In principle, the owner of a thing has the inherent right of ownership. A person can own a thing by getting it from nature, buying it from others, and so forth. In the case of human biological material, we own our bodies. The requirement of consent to donate, or informed consent, is one of the most important grounds for the argument that we own our bodies. From the moment a person is born, he or she has his or her body and lives by using that body. Even if parts of the human body were not separated and another person did not put his or her work and skill into that body, that body belongs to the person who was born with it. Even directly after the body parts are separated, it still belongs to that person. Informed consent, or the express need to donating body parts, is necessary for the disposition of those parts to a transferee. After the actual transfer of the body part or human biological material from the transferor to the transferee, the transferee owns it. However, the transferee’s ownership is limited by the conditions that the transferor expressed, and by any withdrawal of the transferor’s consent. For example, the researcher who obtained human biological material can use it for the purpose of the research for which the donor consented. The donor can withdraw his or her consent up to given point. After withdrawal, the researcher may not be able to use it in some conditions. In this respect, the researcher has conditional ownership of the material.

Is the transferee’s ownership always limited by the transferor’s decisions? If so, this is not reasonable, and biomedical research that uses human biological material will ﬁnd itself in a very unstable situation. It is reasonable to acknowledge the transferee’s ownership that is not limited by the desire of the transferor at a certain stage of the research process. In this situation, the work and skill exception can be very useful. According to Civil Act Article 259(1) in South Korea, “when a person has performed work upon a movable belonging to another person, the ownership of the article created by the work shall belong to the owner of the raw material; provided, that if the value arising out of such workmanship considerably exceeds that of the material, the person who has performed the work shall acquire the ownership of the entire article created.” There might be debate regarding whether or not human biological material is a movable belonging, although they share similar characteristics. That being said, we can apply this idea to determine the time when the transferee obtains ownership free from the transferor’s conditions.

Conclusion

There are three primary issues that should be considered when discussing ownership of the human body and human biological material: (1) the human dignity doctrine, (2) the conﬂicts between participant-donor and researcher medical professionals, (3) and transnational research. Policies that may affect ownership should consider proper authorization, legitimation, and human dignity and rights.

Though a person owns his or her body or body parts, this does not mean that he or she can do anything he or she desires with his or her body and its biological material. There are many natural and social limitations to exercise the ownership of human biological material. Human dignity is the core consideration regardless if we consider ownership of human biological material as biomedical research advances. Biomedical research has produced great beneﬁts to both patients and researchers, and the sum of these beneﬁts will continue to increase. However, this situation has caused conﬂicts between participant-donors and researcher-medical professionals. The ownership system will regulate these conﬂicts through a fair distribution of the beneﬁts. Currently, most biomedical research is not restricted to one country. Rather, transnational research is common. However, the regulatory schemes pertaining to ownership and biomedical research differ in various countries. It is important and urgent to resolve these differences.

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