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The current approach of the courts
  1. Loane Skene
  1. Correspondence to Professor Loane Skene, Melbourne Law School, University of Melbourne, Victoria 3010 Australia; l.skene{at}unimelb.edu.au

Abstract

The approach of the courts when considering proprietary (‘ownership’) interests in human bodily material has been pragmatic and piecemeal. The general principle was initially that such material is not legally ‘property’ that can be ‘owned’, but courts have recognised many exceptions. In determining disputes between individuals in particular cases, they have stated principles that are often inconsistent with those stated in other cases with different facts. Later judges have been constrained by these decisions, especially when made at appellate level. They can distinguish the facts of one case from another to achieve a different outcome, but they cannot state new principles to be applied more widely to promote consistency. This requires the will of Parliament and legislation to introduce new principles. Experience to date suggests that such legislation will need to be wide-ranging and complex, with different principles for different circumstances. There will not be one area of law that answers all the issues that arise.

  • Law

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