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The human body as property? Possession, control and commodification
  1. Imogen Goold,
  2. Loane Skene,
  3. Jonathan Herring,
  4. Kate Greasley

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In the wake of three high-profile judicial decisions concerning the use of human biological materials, the editors of this collection felt in 2011 that there was a need for detailed scholarly exploration of the ethical and legal implications of these decisions. For centuries, it seemed that in Australia and England and Wales, individuals did not have any proprietary interests in their excised tissue. Others might acquire such interests, but there had been no clear decision on the rights or otherwise of the persons from whom the tissue was obtained. In 2009, however, the Court of Appeal of England and Wales recognised a limited exception to this position in Jonathan Yearworth and others v North Bristol NHS Trust (2009). In that case, the Court held that the appellants, who had deposited semen samples for freezing before they undertook treatment for cancer, had “for the purposes of a claim in negligence … ownership of the sperm which they had ejaculated”. One year later, the Supreme Court of Queensland, Australia, took a similarly property-based approach to determining how a semen sample stored shortly before death should be dealt in Bazley v Wesley Monash IVF (2010). According to that court, the co-executors of the estate had sufficient proprietary interests in the semen to legally demand its return from the laboratory where it was held. In 2011, the New South Wales Supreme Court similarly found that the widow of a recently deceased man had a right to possession of his semen in Joceyln Edwards; Re the estate of the late Mark Edwards (2011).

In the editors’ view, these decisions signalled a turning point in the Anglo-Australian jurisprudence in this area, taking the law a step beyond the decisions of the late 20th century such as R v Kelly (1998), in which possessory rights were found …

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