Being and Owning —— The Body, Bodily Material, and the Law

----- 存在与拥有: 身体、身体素材与法律

ISBN: 9780198727989 出版年：2015 页码：257 Wall, Jesse Oxford University Press

The purpose of this Thesis is to determine which set of private law rules ought to apply to the use and storage of bodily material. I recommend that the most appropriate legal approach is through a combination of property rights and duties of confidentiality. The suggestion is that where a healthcare institution obtains possession of bodily material, their possession of the material may give rise to property rights in the material. In addition, where an individual retains entitlements in bodily material that is held by a healthcare institution, the entitlements of the individual ought to be protected through the imposition of duties on the healthcare institution that are akin to duties of confidentiality. This recommendation is the product of two main inquires. The first inquiry concerns which entitlements individuals and institutions ought to be able to exercise in separated bodily material. This involves an investigation into which aspects of the relationship between a person and their body can also be found in the relationship between a person and their separated bodily material. It also involves an assessment as to which societal interests can be served through allocating entitlements in bodily material to healthcare institutions, and how to resolve the conflict between individual and societal interests in the use and storage of bodily material. The second main inquiry concerns the way in which different branches of private law are able to protect entitlements in things. I identify that property rights, rights of bodily integrity and privacy are similar insofar as they protect entitlements through the exclusion of others. Property rights are nonetheless distinct as property law concerns rights than can exist independently of the rights-holder. The recommended approach follows from connecting the different entitlements in bodily material that ought to obtain legal protection with different ways an entitlement may be afforded legal protection.