Proprietary rights in body parts: the relevance of Moore's case in Australia.

The decision of the California Supreme Court in Moore v Regents of the University of California and ors2 has brought the question of whether the human body and its tissue can, or ought to be considered property, from an era of grave robbers into the hospitals and laboratories of the late twentieth century. In a variety of contexts, Anglo-Australian courts and legislatures have had to confront the issue of whether to treat the body as property. Apart from some early decisions relating to the practice of grave robbing3 most of those cases have been isolated, somewhat quirky fact situations where the court has not been forced to give any sustained consideration to the broader issue of the body as property. Similarly, legislative initiatives which touch on the area have done so in a piecemeal fashion, largely because the 'body as property' issue has been incidental to the primary focus. Moore is interesting because the issue is squarely raised as a principal argument in the plaintiff's case. This paper will examine how both the California Court of Appeal and the California Supreme Court dealt with the plaintiff's argument that his tissue was his property. It will also examine the approach of the Anglo-Australian common law to date, and look at how some legislative reforms have treated human tissue. If there are problems with the way that human beings and their tissue are treated, resorting to concepts of property and proprietary interests is not the only alternative. It will be submitted that the approach of Anglo-Australian courts has been to recognise a right to possess a body or body part (and thus in some circumstances to grant, by way of a remedy, aproprietary right) only if it has been in the interests of public policy to do so. Any refusal to accord human beings or their tissue the status of property has been based therefore on considerations of public policy, rather than any difficulties in adapting concepts ofproperty to include people's tissue. As the discussion in this paper about the various challenges facing the law in medico-legal areas will demonstrate, the question of how the law will treat human beings has always been fundamentally an issue affected by judicial perceptions of what is in the public interest and what the community is prepared to tolerate.