The thing I love about this blogging gig is coming across other interesting blogs and people. Can I recommend that you read this post over at Balneus by Dave Bath about property in body parts?
The EU generally prohibits sale for profit of body parts, and Dave queries if there should be an exception for the sale of items such as hair for profit. He makes the good point that real hair can be used for wigs for people suffering from alopecia or baldness for other medical reasons (eg, undergoing chemotherapy). I know that some ladies in India sell their hair to be used in hair extensions for Western women. Well, if it keeps the family fed and healthy, why not?
It’s an interesting question. Coincidentally, the other day someone sent me this crazy site where you can purportedly sell your DNA for profit. The idea makes me feel squeamish. No way anyone’s gettin’ near my DNA. It worries me that companies might seek to patent people’s DNA and use the patent to monopolise the pharmaceutical benefits which might be derived from it. Sound neurotic and far-fetched? Uh-uh. Have a look at the case down below and you’ll see why lawyers become such neurotic beasts – they see the worst behaviour from everyone. Anyway, for reasons I will discuss, the sale of DNA would not be legal in Victoria.
It should be noted that, generally speaking, neither the selling nor buying of human tissue is legal in Victoria: ss 38(1) and 39(1), Human Tissue Act 1982 (Vic). However, there is an exception in s 39(2) which provides that the Minister may give a permit to a person to buy human tissue for profit in certain circumstances. Tissue is defined to mean “an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.” Therefore even the sale of human hair or fingernails would not be legal in this State, unless a Minister was prepared to licence someone to purchase hair. Sperm, ova and foetal tissue are not covered by the provisions dealing with donation of human tissue. These types of tissue are covered by the Infertility Treatment Act 1995 (Vic).
As I said in comments at Dave’s site, there’s a famous case called Moore v Regents of the University of California (1990) 793 P 2d 479 about property in body parts. Nasty people like me make poor students write essays about the case.
Moore was treated for leukaemia at the University of California Medical Centre. His spleen was removed as part of his medical treatment. His doctor and a researcher established a “cell line” with his spleen cells. Because the cells were cancerous, they produced a particular protein in large quantities for an indefinite period. They patented the cell line and made a profit. Moore sued them, saying that he had not consented to the use of his cells in this way.
One of Moore’s claims was that the spleen cells were his “property”, and that by using them without his consent, the University had committed the tort of conversion. They had been detached from him, and therefore were separate from him – did this mean they could be owned by him, as they were derived from him? A majority of the Supreme Court of California said that they were not Moore’s property. However, the University was found to have breached its fiduciary duty towards Moore (namely its duty not to profit at his expense without obtaining his consent).
I was trying to think why I find the sale of human hair less problematic than the sale of human DNA. My thought is that there is a distinction between cells which are living at the point of excision from the body (cell lines, ova, sperm, foetuses, blood etc) and cells which are dead at the point of excision from the body (hair, toenails etc).
Still, I think the only way you could safely allow for-profit use of hair and toenail clippings is to create an express exception for it: eg, “a prohibition on making the human body and its parts as such a source of financial gain, excepting toenail clippings and hair.” What are your thoughts?
P.S. Just realised that this is my first post with a category of “property”. I can’t believe it’s taken me this long to post about property law.