Medical law is, as Mark Hall has suggested, caught between two existential poles. One, the “essentialist” position, sees the subject as its own, distinctive academic field; the medical context defines the approach to the legal instruments being discussed. The other, the so-called “law of the horse” approach, sees medical law disaggregated out into the various doctrinal domains of the applicable law. It is thus no more than the sum of its parts; tort law as applied to doctors and patients, contract law as applied to healthcare providers. In this fascinating collection of papers, lawyers philosophers and sociologists examine one of the boundaries of medical law with property law.
As the editors note, recent decades have seen change, particularly in the UK, following the Human Tissue Act 2004 and the decision of the Court of Appeal of England and Wales in Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37, but no less in other Common Law jurisdictions like Australia. The issues here seem particularly sensitive: “human tissue is […] not like anything else” (8) and, given the myriad ways in which biomaterials are collected and used, diverse: to what extent ought the body or its constituent parts to be subject to the general run of property law? To what extent has the medical context forced an alternative approach? Should the body disrupt, in current parlance, property law? The editors establish the long reach from the nineteenth century to the present of an analysis informed by the “property approach” and the subsequent “work and skill” exception which has formed the default manner of addressing these questions “without (understandably) accounting for the wider context in which their [the courts] decisions were operating” (3). That context is that many of the relevant legislative instruments do not adopt a “property approach”, preferring instead a focus on consent and use. The resulting tension provides excellent subject matter and the fourteen individual chapters do not disappoint, particularly given the collaborative interaction between many chapters.
For some the property approach proves alluring. Simon Douglas defines property rights as exigible against the whole world but also relating to some physical thing. This second characteristic provides a basic measure for that which can be made the subject of a property right, and demonstrates that human biological material can, theoretically, be subject to property rights. Yet the thing to which a...
