Legal protection of human biological materials

Thesis

Do you own your body? Advances in science and the development of genetic databases have given this question an aura of modern controversy. However, English law governing separated biological materials is in an unsatisfactory state. Despite the enactment of the Human Tissue Act 2004 UK, it is not clear, for example, what property rights or non-proprietary interests living persons can claim over their separated biological materials. The development of clear legal principles is necessary, however, to enable individuals to have effective control over such materials and to enable the efficient use of such materials in medical research.

Part I lays the theoretical foundation for the thesis. This opening part examines the nature of property and defines the theoretical position that the thesis adopts concerning property rights. Part I also sets out how English law protects property rights and the right to bodily integrity.

Part II traces the evolution of the law in England, Australia and the US in relation to the human body as well as parts removed from dead bodies and living persons. This includes an examination of the Human Tissue Act 2004. Analysis demonstrates that, although property rights and non-proprietary interests are recognized in certain limited circumstances, it is an open question in English law as to whether or not a living person can claim property rights to separated biological materials.

Part III of this thesis therefore develops and presents a principled basis in English law for the creation and legal recognition of property rights and non-proprietary interests in separated biological materials.

Authors: Hardcastle, R

• DOI: 10.5287/ora-y0yxp4yga
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford