¹ Yearworth and Others v. North Bristol NHS Trust [2009] 2 All E.R. 986 (CA).

² Ibid, paras. 18–24. The claimants argued that they had created and not abandoned their sperm, which had retained its active properties, was meant to be used in its normal capacity, and should give rise to a claim for personal injury. The Court disagreed, differentiating the German case referred to by the claimants and stating, at para. 23: “… Although we understand the contrary argument, it would be a fiction to hold that damage to a substance generated by a person's body, inflicted after its removal for storage purposes, constituted a bodily or ‘personal injury’ to him. … We must deal in realities. To do otherwise would generate paradoxes, and yield ramifications, productive of substantial uncertainty, expensive debate and nice distinctions in an area of law which should be simple, and the principles clear.”

³ Ibid, paras. 46–50. This claim was argued for the first time before, and at the behest of, the Court of Appeal. The Court stated, at para. 47, that, from its conclusion that the men had ownership of the sperm for the purposes of tort, “it follows a fortiori that the men had sufficient rights in relation to it as to render them capable of having been bailors of it.” The Court distinguished Washington University v. Catalona et al. (2006) 437 F. Supp. 2d 985 (Dist Ct), concluding that a gratuitous bailment existed, and that the defendant was therefore liable under the law of bailment.

⁴ See M. Quigley, ‘Property: The Future of Human Tissue?’ (2009) 17 Med. Law. Rev. 457–466, and C. Hawes, ‘Property Interests in Body Parts: Yearworth v. North Bristol NHS Trust’ (2010) 73 M.L.R. 130–140. For more on bailment, see N. Palmer, Bailment, 2nd ed. (London 1991), and M. Bridge, Personal Property Law, 3rd ed. (Oxford 2002).

⁵ On damages, the Court, at para. 60, noted a need for further factual determinations. At paras. 54–55, it stipulated that each claimant would have to demonstrate that his psychiatric injury was a reasonably foreseeable consequence of the breach, whether the duty was considered under tort or bailment. It also noted that recovery may be subject to the same public policy limitations that exist re: secondary victims: see Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 (HL).

⁶ Yearworth, para. 45(a) and (b). The new realities created by biomedicine, and the reliance of those advancements on access to human tissue has been noted: see L. Andrews & D. Nelkin, Body Bazaar: The Market for Human Tissue in the Biotechnology Age (New York, 2001), and C. Waldby & R. Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism (Durham, NC 2006). For a macabre example of the new order, note the Mastromarino case in which a former dentist conspired with funeral home directors to strip over 1,000 interned corpses of bones, skin, and other tissue for sale to companies providing material for implants, grafts and other procedures: see A. Feuer, ‘Dentist Pleads Guilty to Stealing and Selling Body Parts’, New York Times, 19 March 2008.

⁷ Yearworth, para. 45(d). For more on the historical development of property and the human body, see infra, and see R. Hardcastle, Law and the Human Body: Property Rights, Ownership and Control (Oxford 2007).

⁸ Discussed below p. 481.

⁹ HTA 2004, s. 32(9).

¹⁰ HTA 2004, s. 53(1). At the time of the case, the 2008 amendments to the HFEA 1990 were not yet in force, but none of the amendments would have had any bearing on the case.

¹¹ Yearworth, para. 38.

¹² Ibid, para. 45(c).

¹³ Ibid, para. 45(f).

¹⁴ Ibid, para. 41.

¹⁵ [2005] Fam. 1 (CA).

¹⁶ Yearworth, para. 44. Of course, recognising a right does not necessarily imply a property right or demand the creation of a property right.

¹⁷ Ibid, para. 45(f).

¹⁸ See P. Jackson, The Law of Cadavers and of Burial Places, 2d ed. (New York 1950).

¹⁹ Internationally, see the Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being With Regard to the Application of Biology and Medicine, ETS 1997, No. 164, Article 21 (which states that “the human body and its parts shall not, as such, give rise to financial gain”), and its Additional Protocol of the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin, ETS 2002, No. 168, Article 21 (which reiterates the prohibition on financial gain with some qualifications) and Article 22 (which prohibits organ trafficking). In the U.K., see the General Medical Council, Guidance for Doctors on Transplantation of Organs from Live Donors (1992), Nuffield Council on Bioethics, Human Tissue: Ethical and Legal Issues (1995), Medical Research Council, Human Tissue and Biological Samples for Use in Research: Operational and Ethical Guidelines (2001), Part 2, the live Nuffield Council consultation on “Human Bodies in Medicine and Research” (see http://www.nuffieldbioethics.org/go/ourwork/humanbody/page_1027.html), and others.

²⁰ To quote L. Carroll, Alice's Adventures in Wonderland (1865), or L. Kilmister (Motörhead), ‘Keep Us On The Road’ (1977).

²¹ See P. Skegg, ‘Human Corpses, Medical Specimens and the Law of Property’ (1975) 4 Anglo-American Law Rev. 412–425, and a range of case law, infra.

²² See Haynes Case (1614) 77 E.R. 1389, and Sir Edward Coke, Institutes of the Laws of England (1641), 3-203, who stated “The burial of the cadaver (that is caro data vermibus) is nullius in bonis.” Though see Mason, J. & Laurie, G., “Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey” (2001) 64 Med. Law Rev. 710–729CrossRefGoogle ScholarPubMed, who suggest that it derives from a misinterpretation of precedent.

²³ (1788) 2 T.R. 394.

²⁴ (1857) 169 E.R. 959.

²⁵ (1867) L.R. 3 Q.B. 67.

²⁶ (1884) 12 Q.B.D. 247.

²⁷ [1881–85] All E.R. 840. In this case, the court held that directions in a will to deliver the deceased's body to someone other than the executor are void and unenforceable because the Testator has no property interest in the body. In the American context, see Sinai Temple v. Kaplan (1976) 127 Cal. Rep. 80 (CA).

²⁸ If there could be no property in the body, there could be no theft of the body, and therefore no prosecution: see J. Mason and G. Laurie, n 22 above.

²⁹ For more on the intimate relationship between body snatching and scientific advancement, see J. Frank, ‘Body Snatching: A Grave Medical Problem’ (1976) 49 Yale J. Biology & Med. 399–410, I. Ross & C. Ross, ‘Body Snatching in Nineteenth Century Britain: From Exhumation to Murder’ (1979) 6 Brit J. Law & Society 108–118, R. MacGillivray, ‘Body-Snatching in Ontario’ (1988) 5 Can. Bull. Med. History 51–60, M. Highet, ‘Body Snatching & Grave Robbing: Bodies for Science’ (2005) 16 History & Anthropology 415–440, S. Shultz, Body Snatching: The Robbing of Graves for the Education of Physicians in Early Nineteenth Century America (Jefferson 2005) among others.

³⁰ See HTA 2004, ss. 32(9) and (10), which except from the prohibition in commercial dealing in human tissue material which is the subject of property because of an application of human skill. See also HTA 2004, ss. 1(1), (2), (3), 8, and Schedule 1.

³¹ See Gregson v. Gilbert (1783) 3 Dougl. 323, wherein slaves pitched into the sea were characterised as goods thrown overboard, Hopkins v. Blanco (1974) 320 A 2d 139, wherein a wife was considered the property of her husband, and B. Dickens, ‘The Control of Living Body Materials’ (1977) 27 U. Tor. Law J. 142–198, who notes that a debtor could, at one time, be personally attached for payment of debts.

³² P. Matthews, ‘Whose Body? People As Property’ (1982) 36 Current Legal Problems 193–239.

³³ [2005] 1 W.L.R. 1057 (HL).

³⁴ (1908) 6 C.L.R. 406 (Aust HC).

³⁵ (1910) 15 W.W.R. 161 (Alta QB).

³⁶ (1990) 793 P. 2d 479 (Cal SC).

³⁷ See also J. Mason & G. Laurie, n 21 above, who, at 719, state that, ‘the law tempers the consequent confusion in delivering one clear message: the one person who is least likely to have property rights in body parts is the person from whom these parts were taken.’

³⁸ [1998] 3 All E.R. 741 (CA).

³⁹ This right is limited by standards of public decency: see R. v. Gibson [1990] 2 Q.B. 619 (CA), wherein a freeze-dried human foetus was used to make earrings for display in an art gallery and was considered a breach of the common law offence of outraging public decency.

⁴⁰ [2005] 2 W.L.R. 358 (QB).

⁴¹ See HTA 2004, s. 53 and Schedule 1. Ultimately, however, the HTA 2004 does not clearly theoretically ground its provisions in property, or control, or any other founding principle. In this regard, in Venner v. State of Maryland (1976) 354 A. 2d 483 (Ct Spec Apps), at 498, Powers J held that, ‘It is not unknown for a person to assert a continuing right of ownership, dominion, or control … over such things as … organs or other parts of the body …’ [emphasis added].

⁴² (1961) 25 J. Crim. Law 163. A lock of Byron's hair was sold at Sotheby's Auction House in 1970 for £320: P. Skegg, n 20 above.

⁴³ [1974] R.T.R. 478 (CA).

⁴⁴ [1976] R.T.R. 550 (CA).

⁴⁵ (1993) 20 Cal.R. 2d 275 (Cal CA).

⁴⁶ Many US jurisdictions adopt a flexible approach to corpses and survivors' rights and duties, deploying the language of trusts, which permit damages for mental distress caused to survivors when the body is dealt with unlawfully: see M. Pawlowski, ‘Property in Body Parts and Products of the Human Body’ (2009) 30 Liverpool Law Rev. 35–55. Similarly, in the UK, it has been held that a deceased's personal representatives (or others charged by law) have a right to custody and possession of the body with a view to its proper disposition: see R. v. Bristol Coroner, ex parte Kerr [1974] Q.B. 652, Dobson v. North Tyneside Health Authority [1996] 4 All E.R. 474 (CA), and others.

⁴⁷ See National Health Service Act 1977, s. 25. On this point, the Secretary of State has statutory power to charge for body parts not readily available to any person, and certain organisations acquire excised parts and supply them to researchers on a commercial basis, and both transplant services and pituitary glands from cadaver brains are sold commercially: see L. Lehtonen, ‘The Bioethics Convention of the Council of Europe and Organ Sharing for Transplant Recipients in Scandinavia’ (2002) 21 Med. Law 745–751, and G. Dworkin & I. Kennedy, ‘Human Tissue: Rights in the Body and Its Parts’ (1993) 1 Med. Law Rev. 291–319, who, at p. 305, cite the International Institute for the Advancement of Medicine and Human Biologics Inc as a prime operator in the body parts market.

⁴⁸ This is a legal fiction that has a much-maligned sibling in patent law insofar as modern patent instruments, including the Biotech Patenting Directive 98/44/EC, circumvent the prohibition against patenting mere discoveries by allowing inventors to patent biological discoveries by removing them from their natural environment and purifying them. For a comment on this, see J. Sulston, ‘Heritage of Humanity’ (2002), available at http://mondediplo.com/2002/12/15genome.pdf [accessed 9 March 2006], and J. Sulston, ‘Staking Claims in the Biotechnology Klondike’ (2006) 84 W.H.O. Bull. 412–414.

⁴⁹ J. Berg, ‘You Say Person, I Say Property: Does it Really Matter What we Call an Embryo?’ (2004) 4 Am. J. Bioethics 17–18, and J. Berg, ‘Owning Persons: The Application of Property Theory to Embryos and Fetuses’ (2005) 40 Wake Forest Law Rev. 159–220.

⁵⁰ See S. Harmon, ‘A Penny For Your Thoughts, A Pound For Your Flesh: Implications of Recognizing Property in Human Body Parts’ (2006) 7 Med. Law Int. 329–354, and the authorities cited therein, J. Mason & G. Laurie, Mason & McCall Smith's Law and Medical Ethics, 8th ed (Oxford 2010), ch. 15, and the authorities cited therein.

⁵¹ M. Quigley, n 4 above.

⁵² J. Locke, Second Treatise on the Government (1690).

⁵³ See J. Waldron, “Nonsense Upon Stilts”: Bentham, Burke and Marx on the Rights of Man (London 1987).

⁵⁴ B. Björkman & S. Hansson, ‘Bodily Rights and Property Rights’ (2006) 32 J. Med.Ethics 209–214

⁵⁵ See T. Honoré, ‘Ownership’ in A. Guest (ed.), Oxford Essays in Jurisprudence: A Collaborative Work (Oxford 1961) 107–147.

⁵⁶ A. Campbell, The Body in Bioethics (London 2009), p. 14.

⁵⁷ Ibid, ch. 7.

⁵⁸ In this respect, the tendency of court to ignore the sociological, psychological and anthropological attitudes toward the body has been noted: see R. Gold, Body Parts: Property Rights and the Ownership of Human Biological Material (Washington 1996).

⁵⁹ R. Hardcastle, n 8 above, at p. 40.

⁶⁰ We might characterise gametes as special based on their association with genetic reproduction and having reference to the HFEA 1990. On the other hand, that differentiation may not be justified for purposes of developing the common law more broadly.

⁶¹ Thus far, the only case to cite Yearworth is AB and Others v. Ministry of Defence [2009] EWHC 1225 (QB), and that reference was only to note that Lord Judge C.J.'s statement to the effect that the common law must remain relevant in light of ‘the ever-expanding frontiers of medical science’ is equally relevant to statutory interpretation.

⁶² A. Sen, Development as Freedom (Oxford 1999).

⁶³ Preamble of the World Health Organization's Constitution, available at http://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf.

⁶⁴ N. Daniels, Just Health: A Population View (Cambridge 2008).

⁶⁵ G. Laurie, ‘Medical Law and Human Rights: Passing the Parcel Back to the Profession’ in A. Boyle et al. (eds.), Human Rights and Scots Law (Oxford 2002) 245–274.

⁶⁶ [1957] 2 All E.R. 118 (HL).

⁶⁷ See also Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634 (HL).

⁶⁸ [1985] A.C. 871 (HL).

⁶⁹ This physician-oriented approach to autonomy-based patient decisions was also adopted in Scotland: see Moyes v. Lothian Health Board [1990] S.L.T. 444 (OH).

⁷⁰ Bolitho v. Hackney Health Authority [1998] A.C. 232 (HL).

⁷¹ Pearce v. United Bristol Healthcare NHS Trust (1999) 48 BMLR 118 (CA).

⁷² [2000] 2 A.C. 59 (HL).

⁷³ [2004] 1 A.C. 309 (HL).

⁷⁴ McFarlane, para. 123.

⁷⁵ Rees, para. 8.

⁷⁶ [2005] 1 A.C. 134 (HL).

⁷⁷ Ibid, paras. 14–18.

⁷⁸ Ibid, para. 56.

⁷⁹ Ibid, para. 92.

⁸⁰ And one might cite the welcome justice extended against the weight of precedent from time to time by ground-breaking judges like Lord Denning.

⁸¹ Yearworth, paras. 45(a) and (d).

⁸² See n 37 above.

⁸³ And the Court may have cited any number of cases espousing this principle. For example, in L. v. Human Fertilisation and Embryology Authority and Secretary of State for Health [2008] EWHC 2149 (Fam), while rejecting the submission that the common law could be a basis for allowing the claimant to preserve, store and use her deceased husband's sperm in the absence of his prior written consent, the court also accepted that the common law ‘does not stand still’.

⁸⁴ In this respect note A. Campbell, n 55 above.

⁸⁵ And much consternation has been expressed over the apparent trajectory: see Hogg, M., “Duties of Care, Causation and the Implications of Chester v. Afshar” (2005) 9 Edin. Law Rev. 156–167CrossRefGoogle Scholar, Mason, K. & Brodie, D., “Bolam, Bolam – Wherefore Art Thou Bolam?” (2005) 9 Edin. Law Rev. 398–406Google Scholar, Stapleton, J., “Occam's Razor Reveals an Orthodox Basis for Chester v. Afshar” (2006) 122 L.Q.R. 426–448Google Scholar, and others.

⁸⁶ G. Laurie, “Personality, Privacy and Autonomy in Medical Law” in N. Whitty & R. Zimmermann (eds.), Rights of Personality in Scots Law: A Comparative Perspective (Dundee 2009) 453–484, at p. 463.

⁸⁷ Yearworth, para. 53.

⁸⁸ In this regard, see Pretty v. U.K. (2002) 35 E.H.R.R. 1. See also Guerra & Others v. Italy (1998) 26 E.H.R.R. 357, and McGinley v. U.K. (1999) 27 E.H.R.R. 1, both of which impose positive duties on states to provide information to people so they might make autonomous choices on matters concerning their health.

⁸⁹ See ECHR, Art 13.

⁹⁰ On this point, see Stevens v Yorkhill NHS Trust and Another (2007) 95 B.M.L.R. 1 (Ct Sess), a Scottish case which offers an alternative approach based on human dignity. In that case, the parent pursuer argued that, despite authorising a post-mortem, it was never explained to her that this entailed removing and retaining organs from her deceased child. Her discovery of this led to severe depression and, ultimately, to loss of employment. She argued that: (1) a negligence-based duty to suitably inform and provide her with the opportunity to give appropriate consent to the procedure, and, separately, to the removal and storage of tissue was breached; and (2) wrongful interference with a corpse is actionable under Scots common law in its own right as an affront to human dignity.