Abstract
It has long been the position in law that, subject to some minor but important exceptions, property cannot be held in the human body, whether living or dead. In the recent case of Yearworth and Others v North Bristol NHS Trust, however, the Court of Appeal for England and Wales revisited the property debate and threw into doubt a number of doctrines with respect to property and the body. This brief article analyses Yearworth, (1) reviewing the facts and the Court’s decision with respect to the originators’ proprietary and contractual interests in their body and bodily products, (2) considering the significance of relying on property and its use a legal metaphor, (3) questioning the scope of the property right created, and (4) querying whether an alternate conceptual approach to extending rights and a remedy was warranted. It concludes that, while Yearworth engages with, and impacts on, important theoretical and practical issues—from legal, healthcare and research perspectives—it does not offer a great deal of guidance and, for that reason, its precedential significance is in doubt.
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Notes
With respect to living bodies, see Matthews (1982), who noted that interference with a living body is an invasion of a personal (not a proprietary) right. With respect to dead bodies, see Haynes Case (1614), 77 ER 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 and Laurie (2001), who suggest that it derives from a misinterpretation of precedent.
One should note that this was a criminal case concerned with whether the defendant had ‘possession’ of a weapon, in this case his hand inside his jacket pocket and held to look as if it was a firearm. The (only) relevant statement comes from Lord Bingham, who, at para. 8, stated: “… One cannot possess something which is not separate and distinct from oneself. An unsevered hand or finger is part of oneself. Therefore, one cannot possess it. Resort to metaphor is impermissible because metaphor is a literary device which draftsmen of criminal statutes do not employ. What is possessed must under the definition be a thing. A person’s hand or fingers are not a thing. If they were regarded as property for purposes of s. 143 of the 2000 Act, the Court could, theoretically, make an order depriving the offender of his rights to them, and they could be taken into the possession of the police.”
This approach was more recently applied in AB v Leeds Teaching Hospital NHS Trust (2004) EWHC 644 (QB).
This last claim was argued for the first time in, and at the invitation of, the Court of Appeal.
In L v Human Fertilisation and Embryology Authority and Secretary of State for Health [2008] EWHC 2149 (Fam), the Court also stipulated that the common law ‘does not stand still’.
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.
It should be noted that it is not clear from the case whether the claimant must demonstrate the manifestation of a psychiatric injury, as is the case in tort.
Recall that, quite simply, metaphors allow us to understand and experience one kind of thing in terms of another (Lakoff and Johnson 1980).
In this regard, see Campbell (2009), who, in chap. 2, argues that the property paradigm is dehumanising.
The term ‘actio injuriarium’, also appearing as ‘actio iniuriarum’, refers to a right of action for wrongful conduct resulting in an affront to honour and feelings (or personality), and which entitles the victim to claim damages. It is an old claim received into Scots law from Roman law many centuries ago. For more on this action, see MacQueen (2005) and Reid (2007).
The term ‘pursuer’, in Scots law, refers to the party who initiates a lawsuit with the intent of obtaining a legal remedy, and it is the equivalent of ‘plaintiff’ or ‘claimant’ in other jurisdictions.
The term ‘solatium’ refers to claimable damages in a personal injury claim that are ‘non-patrimonial’, that is damages for emotional distress and/or pain and suffering experienced by the victim (as opposed to patrimonial damages, which include more readily quantifiable economic losses): see Scottish Law Commission (2008).
In this regard, note the Universal Declaration of Human Rights (1948), the Biomedicine Convention (1997), the Universal Declaration on the Human Genome and Human Rights (1997), the Universal Declaration on Bioethics and Human Rights (2005), and others.
Donoghue v Stevenson (1932) was transformative of the common law. It was immediately recognised as a legal turning point with respect to its holding that individuals have duties toward persons whom they will never meet but might foresee as being injured by their actions (Pollock 1933). Fifty years post-decision, it was viewed as the “single most important decision in the history of the law of torts” (Linden 1983), and the “most important decision in all the common law” (Smith and Burns 1983). Sixty years post-decision, it was still described as “revolutionary”, having reshaped the law of product liability and torts (Ferrari 1994).
For an imaginative and activist judge, the Yearworth decision would perhaps suffice as a launch pad for articulating the general justice requirements with respect to living bodies and originators of parts, tissue and products, but it is a hope reliant on future cases and judges.
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Harmon, S.H.E. Yearworth v. North Bristol NHS trust: a property case of uncertain significance?. Med Health Care and Philos 13, 343–350 (2010). https://doi.org/10.1007/s11019-010-9261-4
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DOI: https://doi.org/10.1007/s11019-010-9261-4