1. Although cumbersome, the terms ‘bodies’, ‘body parts’ and ‘tissue’ are used throughout this paper to emphasise their difference. The term ‘human material’ was used in the Interim Report of ‘The Inquiry into the management of care of children receiving complex heart surgery’ at The Bristol Royal Infirmary, chaired by Professor Ian Kennedy, May 2000; available at http://www.bristol-inquiry.org.uk/index.htm. The Interim Report published in relation to the Inquiry, ‘Removal and Retention of Organs’, May 2000, is later called the ‘Bristol Report’. It defined ‘human material’ to include tissue, organs and parts of organs and amputated limbs. The present writer believes this elision of tissue preserved in a laboratory, eg on glass slides, with larger parts of human bodies, is unfortunate and should be avoided.

2. For brevity, the paper is confined to these three common law jurisdictions.

3. Above n 1.

4. The Royal Liverpool Children's Inquiry; the report of this inquiry, published on 30 Jan 2001, is later called the ‘Alder Hey Report’. It is available at http://www.rlcinquiry.org.uk.

5. Report of the Independent Review Group on the Retention of Organs at Post-Mortem, Jan 2001, available at http://www.show.scot.nhs.uk/scotorgrev/Final%20Report/ropm-00.htm.

6. It may be argued that the ‘context’ in which I have suggested the various cases were decided is less clear than the one that I have described in each case - hygiene and respect for the dignity of the person; patents and biotechnology; pragmatism in the use of forensic samples; and public outcry at the retention of deceased children's body parts after postmortem without parents' consent or knowledge. ‘Regulatory contexts’ may sometimes overlap. Judicial decisions or policy recommendations may have more than one foundation, either stated or implicit. However, in suggesting the various contexts in which the cases described in this paper were decided, I have relied not only on my own response, but also on the comments in the cases and the reports of the Inquiries, which indicate their thinking. These are highlighted in the text and notes.

7. Department of Health ‘Report of a census of organs and tissues retained by pathology services in England’ 2001, available at http://www.doh.gov.uk/organcensus/census.pdf.

8. See my scenario in L Skene ‘Legal issues related to the ownership of and access to bodily material’ in Heinrichs, A (ed) Trends in Molecular Medicine (London: Elsevier Science, 2002) vol 8 Google Scholar, available at http://news.bmn.com/hmsbeagle.

9. Doodeward v Spence (1908) 6 CLR 406, HCA; Williams v Williams (1882) 20 Ch D 659.

10. R v Kelly [1998] 3 All ER 741 at 749 per Rose LJ. This was subject to the rider ‘not in themselves and without more capable of being property’ (ibid, emphasis added).

11. R v Fox (1981) 2 QB 246. Others may have a right to possession of bodies or parts of bodies. A coroner may hold a body for a coronial inquiry until the inquiry is finished: R v Bristol Coroner, exp Kerr [1974] QB 652 at 659B per Lord Widgery CJ. A person licensed to possess an ‘anatomical specimen’ has a statutory right to possession under the United Kingdom's Anatomy Act 1984, s 1(2)(a). Note that, although it has commonly been said that an executor has the right to possession of a body for burial, Professors Kennedy and Grubb suggest that it is more likely that the relevant person is the ‘person(s) next entitled to be appointed the administrator of the deceased's estate under the Non-Contentious Probate Rules 1987 (SI 1987 No 2024) r 22, ie the surviving spouse, children, parents siblings etc’: Kennedy, I and Grubb, A Medical Law (Butterworths: London, 3rd edn, 2000) p 2243 Google Scholar, citing Matthews, P and Freeman, J (eds) Jervis on Coroners (London: Sweet & Maxwell, 11th edn, 1993) para 7-05Google Scholar.

12. (1908) 6 CLR 406, HCA.

13. Foster v Dodd (1866) LQ 1 QB 475, (1867) LR 3 QB 67 per Byles J.

14. (1992) 106 FLR 446.

15. Lanham, D ‘Transplants and the Human Tissue Act 1961’ (1971) 11 Med Sci & Law 16.CrossRefGoogle ScholarPubMed

16. Discussed by Kennedy and Grubb, n 11 above, pp 2244–2250.

17. (1908) 6 CLR 406, HCA.

18. Kennedy and Grubb, n 11 above, p 2244.

19. [1998] 3 All ER 741.

20. An employee of the College who removed the parts from the College was also convicted.

21. [1998] 3 All ER 741.

22. R v Rothety [1976] Crim L. R 691, CA; PQ v Australian Red Cross Society [1992] 1 VR 19; discussed below.

23. 793 P 2d 479 Cal SC (1990).

24. Note that conversion is ‘a tort that protects against interference with possessory and ownership interests in personal property’: 793 P 2d 479 Cal SC (1990), per Panelli J. Moore's claim against Dr Golde and the University of California had 13 causes of action, including conversion of bodily property, lack of informed consent, breach of fiduciary duty, fraud, unjust enrichment and negligent misrepresentation.

25. 793 P 2d 479 Cal SC (1990) at488/.

26. Panelli J held that thousands of cell lines exist in tissue repositories and that patent holders are required to make samples available to anyone. Scientists commonly use human tissue or cells in their research; and (quoting a report of the House Committee on Science and Technology of the United States Congress) approximately25/% of the nearly 350 commercial biotechnology firms in the United States ‘appear[ed] to be engaged in research to develop a human therapeutic or diagnostic reagent. Most, but not all, of the human therapeutic products are derived from human tissues and cells, or human cell-lines or cloned genes’. Lin, M ‘Conferring a Federal Property Right in Genetic Material: Stepping into the Future with the Genetic Privacy’ (1996) 2 Am J Law and Medicine 109 at 118.Google Scholar

27. 793 P 2d 479 Cal SC (1990) at 492–93.

28. 793 P 2d 479 Cal SC (1990).

29. [1997] 1 WLR 596.

30. Such as Doodeward v Spencer (1908) 6 CLR 406, Aust HC.

31. [2000] WASC 146 (WASC).

32. [2000] WASC 146 (WASC), para 22.

33. [2000] WASC 146 (WASC), para 14.

34. (1908) 6 CLR 406, Aust HC.

35. [2000] WASC 146 (WASC), para 14.

36. [2000] WASC 146 (WASC), para 24.

37. [2000] WASC 146 (WASC), para 23.

38. [2000] WASC 146 (WASC), para 25. The order was made against the pathology laboratory because it was in possession of the tissue: ibid.

39. [1997] 1 WLR 596.

40. The claim in bailment was not fully discussed because, even if there had been a bailment it would have been by the doctor, not by the administratrix.

41. [1976] Crim LR 691, CA; see also R v Welsh [1974] RTR 478, CA: urine held to be ‘property’ and capable of being stolen.

42. Cf R v Kelly [1998] 3 All ER 741.

43. [1992] 1 VR 19.

44. Similarly, in the United Kingdom a commercial agreement for the sale of tissue that falls outside the Organ Transplants Act 1989 would be governed by the Supply of Goods and Services Act 1982, if the supplier ‘acts in the course of a business’: Kennedy and Grubb, n 11 above, p 1780.

45. PITY 2 is an acronym for ‘parents who inter their young twice’. The group was instrumental in having the law changed so that organs could be cremated (previously only bodies could be cremated): SI 2000/58.

46. Charter, D ‘Hospital in organs scandal holds 400 foetuses’ The Times, 14 November 2000.Google Scholar

47. Ibid. The Bristol Report also used the word ‘arrogance’: para 32.

48. J, Bale ‘New laws will stop ‘shocking’ organ removal’ The Times, 29 January 2001, p 6. A front-page report in The Times on 31 January 2001 (by Nigel Hawkins and Russell Jenkins) was headed ‘Hospitals braced for anger over 100,000 stored organs’ and reported doctors ‘systematically stripping organs’. Both this report and another in The Times on 27 January 2001 used the words ‘outrage’, ‘scandal’ and ‘horror’: I Cobain, R Jenkins, A, Sage ‘Hospitals sold tissue of living children’: p 12. On 31 January 2001, Nigel Hawkes reported on the findings of the Alder Hey Report: ‘a system riddled with complacency and neglect’ and a documentation system that was ‘shocking and disrespectful’ at Alder Hey hospital; the university's ‘managerial inadequacy’; the coroner's ‘slack procedures’: ‘Retention of organs illegal and unethical’, p 8. An editorial in The Times on 5 February 2001 referred to ‘medical practices that have, at times, been haughty and haphazard’ and ‘[a]rrogance within the medical profession towards relatives of the dead’: ‘Some summit, Milburn, media and medicine for the living’.

49. R H Anderson, The Times, 7 February 2001, p 19.

50. The report does not hold back in acknowledging the feelings of the parents: ‘Parents, particularly those of children who have died in hospital, have been shocked.’ Parents were ‘almost entirely unaware of this practice by pathologists’ and even if they had consented to autopsies in hospital, they did not have ‘any real understanding of what was involved’: p 1. See also para 94: parents did not understand the meaning of tissue, that tissue might be retained, perhaps indefinitely, that tissue could be put to a variety of uses and, that as a consequence, they would be burying or cremating their child's body incomplete.

51. Bristol Report, n 1 above, para 114.

52. The report referred to the ‘informed co-operation’ of parents (para 126, rec 2) and recognised parents' implicit right of control. There are also recommendations on the need to support parents in making decisions at times of stress: appropriate privacy, support, counselling (rec 35); time to reflect (rec 43).

53. Hospital post-mortems are undertaken at the request of clinicians or parents to assist in understanding the cause of death and to learn for future care (para 28). This type of post-mortem cannot be lawfully undertaken if a relative objects (para 17, Annex B, paras72/, 154/; this may be a quite distant relative: ibid, paras90/; Human Tissue Act 1961, s 2(2); the guidelines in The Autopsy and Audit use the language of consent: Annex B, paras 80, 113).

54. Coronial post-mortems are authorised by the Coroner's Act 1989, ss 8,9,20. Their purpose is to determine the cause of death and, if necessary, the identity of deceased. The coroner is not required to seek consent or to respect the objections of the parents but the Practice Notes for Coroners recommend that relatives and family be informed about the post-mortem: Annex B, paras 43, 45.

55. For a coroner's post-mortem, the Report recommends that the coroner should contact parents who object and explain why an autopsy is necessary (rec 9). Parents should be told about the post-mortem - date, time and place (rec 14); timing of burial or cremation (recs 17, 39); (on being asked for consent to retain human material) that human material includes organs, parts of organs and tissue in various forms (rec 24); the purpose for which tissue is kept-audit, education, research, display (eg at a conference) or archiving (rec 25). Parents should have time for reflection (rec 26). There are similar recommendations for hospital autopsies.

56. Bristol Report, n 1 above, p 1.

57. Bristol Report, n 1 above, paras 129, 191.

58. Bristol Report, n 1 above, para 27.

59. Bristol Report, n 1 above, Annex B, paras 38,55/, 141, 145.

60. Bristol Report, n 1 above, para 73.

61. Bristol Report, n 1 above, para 75.

62. Recommendation 60. See too Bristol Report, n 1 above, Annex B, para 66: the parents have ‘a right to possession attendant upon a duty to dispose’. If they do not exercise this right the pathologist has power to dispose of it but no duty to do so: ibid.

63. Cf Doodeward v Spence, n 9 above, to which the report refers: para 78, note 60.

64. Bristol Report, n 1 above, para 78. The comment that ‘the legal position should not rest on such arcane distinctions’ was described as a ‘remark in passing’ but that does not necessarily undermine its weight.

65. Bristol Report, n 1 above, para 33.

66. Organ Retention: Interim Guidance on Post-Mortem Examination (5 January 2001) para 4.

67. Department of Health, n 7 above.

68. The percentage where organs were retained in 1999 was 2.3%; the percentage where tissue was retained was 42%: Department of Health, n 7 above, p 2.

69. Tissue was retained from 65% of post-mortems on children, 72% of post-mortems on infants (under 1 year) or stillborn babies, and 39% of post-mortems on adults: Department of Health, n 7 above, p 2.

70. Department of Health, n 7 above, p 3.

71. Department of Health, n 7 above, p 4. Other authorisation was consent from relatives; research usually with consent; and medico-legal use: ibid.

72. Department of Health, n 7 above, p 4. Fetuses and stillborn babies were generally treated more sensitively; they were often stored separately and parents consulted before disposal: ibid, pp 4–5.

73. The Report of the Chief Medical Officer, the Donaldson Report on the Royal Liverpool Children's NHS Trust.

74. Alder Hey Report, n 4 above, ch 11, para 1.1. Like the Bristol Report, the Alder Hey Report recommended that consent should be sought for coronial post-mortems as well as for hospital post-mortems.

75. Alder Hey Report, n 4 above, ch 11, para 1.3. Communication should be sensitive, open and detailed (ch 11, para 1.6); effective and sympathetic (ch 11, para 1.7); with ‘[c]lear informal language’ (ch 11, para 2.3); ‘respecting individual attitudes to the body following death’ (ch 11, para 4.8). See also ch 12, bereavement advice; and ch 12, para 1.12: ‘The need for respect cannot be overstated’.

76. Alder Hey Report, n 4 above, ch 11, para 3.2; the report said that this principle applied also to tissue in archives throughout the country that was previously taken unlawfully: ch 11, para 1.9. See also proposed consent form: ch 11 para 4, especially para 4.8

77. Alder Hey Report, n 4 above, ch 11, paras 3.3, 3.4.

78. Eg Royal College of Pathologists (UK) Guidelines for the Retention of Tissues and Organs at Post-Mortem Examination (March 2000); Australian National Statement on Ethical Conduct in Research Involving Humans (1999) available at http://www.health.gov.au/nhmrc/publications/pdf/e35.pdf.

79. See above discussion of Bristol and Alder Hey Reports.

80. Cf Alder Hey Report, n 4 above; n 77 above; and passage quoted in text.

81. ‘About 1 in 4 families object to their relatives' organs being donated’: Department of Health ‘An investigation into conditional organ donation’ Report of the Panel (http://www.doh.gov.uk/pub/docs/doh/organdonation.pdf) para 3.20. The need for information and consent was emphasised by the Bristol Inquiry (nn 51–53 above and accompanying text); the Chief Medical Officer's guidelines (n 66 above and text); the Donaldson Report (n 73 above and text); and the Alder Hey Report (nn74/ above and text). Professor Ken Mason and Dr Graeme Laurie argue, on the other hand, that only the consent (or refusal) of the deceased should be considered, not that of relatives, as the ‘autonomy’ in question is that of the deceased: J K Mason and G Laurie, T ‘Consent or property? Dealing with the body and its parts in the shadow of Bristol and Alder Hey’ (2001) Mod LR 710 at 710-729Google ScholarPubMed.

82. Bristol Report, n 1 above, para 172 - acts potentially incompatible with European Convention on Human Rights and Fundamental Freedoms, art 8 (family life); para 174 Patients Charter - rights to care in NHS, to information; to choose whether to participate in research (paras176/); right to respect for religion, cultural views. Also European Convention on Human Rights and Biomedicine, art 2: ‘The rights and welfare of the human being shall prevail over the sole interest of society or science’. Article 5: ‘free and informed consent’.

83. Examples of such conditions are a white recipient (Department of Health, n 81 above); use only for research of a particular type, eg diabetes research, not others, eg research on contraception. The Department of Health Report (n 81 above) bans the first condition (race), but would seem to allow the others (it allows directions on what organs may be taken (para 1.9) but says nothing further about uses for research. The United Kingdom's Human Fertilisation and Embryology Act 1990 allows some conditions to be imposed but is based on consent and not property.

84. Also, in the United States, the law on fiduciary obligations protects these interests: Moore v Regents of the University of California 793 P 2d 479 Cal SC (1990).

85. Cf the similar distinction between personal and proprietary rights made in the Alder Hey Report: n 77 above and text quoted from the Report.

86. Many academic writers believe the opposite: Morgan, D ‘Where do I own my body (and why?)’ in Issues in Medical Law and Ethics (London: Cavendish, 2001) pp 83–104 Google Scholar; Harris, J W Property and Justice (Oxford: Clarendon Press, 1996)Google Scholar (Harris states categorically at p 351: ‘Every person ought to be regarded as the owner of any separated part of his body’); Mason and Laurie, n 81 above.

87. There will be an inconsistency if the person has full ownership; lesser property interests can co-exist.

88. Cf Harris, n 86 above, p 352: organs should not be commodified because that involves ‘an affront to our fundamental notions of human dignity’. Sale and property need not go together. One can have property interests that fall short of a ‘commercial’ interest; see eg, the ‘mere-property use-privileges and control-powers’: Harris, p 356. Nevertheless, in the public mind, property and sale are associated and that influences the popular response.

89. See Skene, L ‘Patients' rights or family responsibilities? Two approaches to genetic testing’ (1998) 6 MLR 1 CrossRefGoogle ScholarPubMed; Skene, L ‘Genetic Secrets and the Family: A Response to Bell and Bennett’ (2001) 9 MLR 162.CrossRefGoogle ScholarPubMed

90. Some say that recognising people's property interests in their own bodies and its parts would in fact encourage research, eg by financial inducement to participate. See eg, D Morgan, n 86 above, p 99, references cited in his notes 67–70.

91. Ideally, all types of tissue, and all types of illness or disease, should be represented, for purpose of comparison of symptoms, progression, effectiveness of intervention etc.

92. This principle would apply as much to bodies and body parts as to tissue, though with bodies and body parts, the deceased or next of kin might retain a right to direct ultimate disposition. This right arises only if the personal representatives seek possession, see Lanham, text to n 15 above.

93. Cf Alder Hey Report quoted in text to n 77 above.

94. See Grubb, A ‘I, Me, Mine: Bodies, Parts and Property’ (1998) Med Law Int 299 CrossRefGoogle ScholarPubMed: people's right to use a thing in their possession may be limited by law -eg their ability to sell or even dispose of it.

95. I suggest methods for promoting confidentiality in L Skene ‘Ownership of human tissue and the law’ Mark Patterson (ed) in (2002) 3 Nature Reviews Genetics 2 at145/http://www.nature.com/reviews.

96. This fits in with the case law on sale of blood products: nn 22, 44 above and text.

97. Above nn 20, 21 and 42 and text.

98. Cf letter by John Byfield to The Times, 12 February 2001, p 1: ‘I very much doubt whether any hospital has ever involved a patient in the disposal of an amputated gangrenous leg or even a heart which has been replaced by a transplant.’

99. For the purposes of this paper, I do not discuss the special ethical and legal issues associated with fetuses, gametes and embryos.

100. Only regenerative tissue may lawfully be donated for research. Organs may be donated for transplant but not for research.

101. Examples are chemically preserved excised tonsils and kidney stones that are sometimes offered to patients to take home after surgery. The Nuffeld Council on Bioethics also envisages that hospitals may return a patient's appendix or gallstone: Human Tissue, Ethical and Legal Issues (1985) para 9.5.

102. See my arguments concerning discarded teeth: Skene, n 95 above.

103. The reason is that the hospital would then have no legal authority to retain the tissue. An exception would arise if there were lawful authority other than consent, such as a statutory requirement or a court order. It would follow that Guthrie cards would have to be returned on request but not blood alcohol samples. If the hospital wanted to retain surgically removed body parts or tissue for forensic purposes (eg to use in evidence in litigation against it), it would need to obtain court authority to do so.

104. Cf the causes of action in Moore v Regents of the University of California 793 P 2d 479 Cal SC (1990).

105. An agreement could be made to compensate voluntary patient groups and charities which can be instrumental in galvanising a research community to become interested in their condition and in organising the patient resources that researchers need. See Skene, , n 95 above; Lindee, M S Genetic disease since 1945 2000 1(3)Google Scholar Nature Reviews Genetics

106. This was claimed in Moore v Regents of the University of California 793 P 2d 479 Cal SC (1990). Although the doctor-patient relationship has not been held to be fiduciary in the United Kingdom or Australia, fiduciary obligations of doctors were recognised in Breen v Williams (1996) 186 CLR 71, HCA. One duty is not to take advantage of the doctor-patient relationship (Brennan CJ at 83); and an action might lie to account for profits and make good losses if that duty is breached (Gaudron and McHugh JJ at 113). Cf D Morgan, n 86 above, p 102: a patient might sue for negligent non-disclosure of the prospect of monetary gain; or for unjust enrichment.

107. Such a condition was imposed by the family of an English donor in 1998; Department of Health, n 81 above, paras 4.4, 4.6. It has now been recommended that organs should not be accepted on such conditions: ibid, para 6.1. The reason is that the National Health Service ‘could be breaking the law [under the Race Relations Act] if it did not ignore [such conditions]’: ibid, para 1.10; also para 5.3.iii; and possibly also the donor: para 5.3.iv. The only condition that should be imposed is one specifying which organs may be taken: ibid, para 1.09.

108. Cf the Bristol Report: a Coroner is functus officio when an investigation is completed and has no authority to retain tissue: nn 59–62 above and text.

109. Ibid.

110. The Bristol Report favoured this view: n 1 above, para 147.

111. The Alder Hey Report made the same distinction: n 77 above and italicised section in text.

112. Cf Bristol Report, n above, para 148: if the pathologist is regarded as having the best claim to possession of the tissue, then he could exercise work or skill and take advantage of the Doodeward exception. The inquiry does not advocate this approach: para 153.

113. Eg a retained organ could be ‘artistically enhanced’ and displayed in an exhibition; cf R v Gibson; R v Sylveire [1990] 2 QB 619 (earrings made from two human fetuses exhibited).

114. Eg genetic information from the Mo cell line could be revealed to the press or other people, with implications for Mr Moore's family, as well as himself.

115. Professors Kennedy and Grubb doubt that proximity could be established in a negligence action even by parents who discover a deceased child's organs have been retained: n 11 above, p 1849.

116. See n 106 above.

117. On the basis that anyone receiving preserved tissue or genetic information must be aware that it is accompanied by an obligation of confidentiality.

118. Usually damages would not be awarded for distress, eg on learning what has occurred. However, if a person has lost employment or is not able to obtain insurance because of an unlawful disclosure, the damages might be significant. Restitutional damages, for a share of profits, might also be possible in future.

119. Cf Bristol Report, n 1 above, Annex B, paras128/ : executors are not entitled to possession of tissue not needed for burial even if it was not lawfully acquired initially.

120. Eg what constitutes the ‘lawful exercise of work or skill’ (Doodeward v Spencer (1908) 6 CLR 406, HCA; Dobson v North Tyneside Health Authority [1997] 1 WLR 596)? In R v Kelly [1998] 3 All ER 741, anatomical specimens were recognised as property because they had been preserved, fixed or dissected for exhibition or teaching purposes; yet in Dobson, preservation of the sample in paraffin wax was not recognised as making that tissue property. When does tissue become ‘a novel item with a use of its own’, a test suggested by Grubb, n 94 above; or something factually and legally distinct from the cells taken from [a person's] body' (Moore v Regents of the University of California, 793 P 2d 479 Cal SC (1990) per Panelli J)?

121. Judges have recognised that tissue removed from the body is property for some purposes: forensic testing (Roche v Douglas [2000] WASC 146 (WASC)); theft (R v Kelly [1998] 3 All ER 741; R v Rothery [1976] Crim LR 691) and patenting of biological inventions (Moore v Regents of the University of California, 793 P 2d 479 Cal SC (1990)).

122. The notion of property is essential to ownership but not to other proprietary rights; eg in Doodeward v Spencer (1908) 6 CLR 406, HCA, the court referred to an executor's right to possession of a corpse for burial even though there could not be property in a corpse (subject to the work and skill exception).

123. Cf Grubb, n 94 above: English law is less concerned with ultimate title (ownership) than with rights associated with possession.

124. Above n 11 and text. Note the people who may be entitled to possession of a body: n 11 above.

125. Cf Bristol Report, n 1 above, Annex B, paras128/ : An executor's right to possession of a body arises from the duty to bury the body, not necessarily parts of the body, or tissue in tissue banks.

126. The Alder Hey parents apparently favoured the definitions in the Concise Oxford Dictionary: ‘Tissue: A collection of cells specialised to perform a particular function; Organ: a part of the body composed of more than one tissue that forms a structural unit responsible for a particular function’. Alder Hey Report, n 4 above, ch 11, p 1. However, I do not believe that all parts of the body except tissue in this narrow sense are ‘needed for burial’. This could be left for decision in each case to accord with the wishes of particular people.

127. Eg Human Tissue Act 1982 (Vic), s (3):‘An order by a coroner under the Coroners Act 1985 (Vic) directing a post-mortem examination is. authority for the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of the deceased person for the purpose of the post-mortem examination’ (emphasis added). This permissive form of authority may be less acceptable in the UK, post Bristol and Alder Hey. Even in Victoria, there is reluctance to use tissue removed at post-mortem for other purposes without specific consent despite the statutory authority to do so.