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Though the authors of this commentary have deep felt doubts about the fruitfulness of Björkman and Hansson’s analysis of bodily rights, they do not doubt their capacity to develop both creative and provocative thoughts
It is always welcoming to be confronted with thoughts that, even though one wholeheartedly disagrees with them, have the effect of stimulating one’s own reflections on matters, which without such confrontations, would have been less distinct, less critical—and we would gladly admit, less polemical. Thus it is thanks to Barbro Björkman and Sven Ove Hansson’s article, “Bodily rights and property rights”, that we have been able to set our present course into these murky waters. The issue they want to address is by no means of a kind that lends itself easily to theoretical speculation. This has, perhaps, as much to do with the inherent intricacy of the issue itself as with the controversy it has managed to arouse. The issue is: is it possible to have ownership over one’s own body—that is, is it appropriate to treat the body and its components as property? What are the implications of conceptualising the body and its parts in terms of property? Should one, as a general rule, be able to sell and buy human biological material? If so, who should be allowed to buy and sell it? Does the sale or donation of one’s own bodily parts imply a transfer of ownership rights to the buyer or receiver, or is it rather that ownership of human bodily parts can only be acquired after the material has been, say, manipulated in a laboratory?
Contrary to Björkman and Hansson, who see “the primary normative issue” to be “what combination of rights a person should have to a particular item of biological material”, we believe that their decision to construe …
↵1 John Moore underwent treatment for hairy-cell leukaemia at the Medical Center of the University of California. He claimed that his physician and other defendants used his cells in potentially lucrative medical research without his permission and that he had a proprietary interest in each of the products that any of the defendants might ever create from his cells or the patented cell line. The court held that the complaint stated a cause of action for breach of the physician’s disclosure obligations, but not for “conversion” which is a legal term for a “wrongful act of dealing with goods in a manner inconsistent with the rights of the person entitled thereto, with the intention of denying his title or asserting a right inconsistent with it”.9
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