A Body of Law

A Body of Law


Tuesday, September 8, 2015






I’m going to ask you a strange question. Have you ever wondered whether you own your own body?

What if scientists took samples from you which were used to cure a deadly disease? What if the great legends of fiction became real and a modern day Frankenstein was created, with the use of your left arm? Could you claim millions of dollars for the use of your body part? Or would you simply receive a standard ‘well done’ award, which you later throw away or use as a coffee coaster?

To find the answer to these questions we have to travel back to 1614 England. At this time, Mr Haynes stood trial for breaking into a graveyard and stealing winding sheets that bound the corpses of four people.1 Now, I realise this is disgusting but apparently the cloth was worth a lot of money in those days. Anyway, Mr Haynes was found guilty of petty larceny.

Interestingly, in the course of the Court proceedings the Judge found that a corpse was not capable of owning property.2 As such, the winding sheets could not be owned by the dead bodies. Somehow, this ruling has been interpreted or associated with the proposition that a corpse is not capable of being property3, rather than a corpse is not capable of owning property.

Despite the confusing background of where the rule came from, the rule has been around for more than three hundred years and has become an established and authoritative rule.4 As such, you can wave goodbye to your millions of dollars and say hello to your coffee coaster.

The good thing about rules are that they are made to be broken. Over the centuries there have been some interesting cases which have created exceptions to the rule, my favourite of which is Doodeward v Spencer5 which brought about the ‘work and skill’ exception.

In 1908 the High Court of Australia heard the case of Doodeward v Spencer.6 The subject matter of this case was the preserved body of a deformed baby. The mother of the baby gave birth to it in New Zealand forty years before the case was heard, it was still-born. The mother’s medical attendant, a Dr. Donahoe, who arrived after the birth, took the body away with him, preserved it with spirits in a bottle, and kept it in his surgery as a curiosity. At his death in 1870 it was sold by auction with his other personal effects.7 The mother of the baby instituted legal proceedings for wrongful detention of a personal possession. The question is, could the preserved body be a possession belonging to the mother?

The Court found that ‘when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it…’8 As such, we have an exception to the rule that there can be no ownership in the human body!

Although, what about tissue taken from the body? What if my cells cured cancer or helped create a substance that stunted the aging process? It sounds like a lucrative business, right? Well, if you would like to know the answer be sure to read my next blog.

Now, to get back to making my modern day Frankenstein. You don’t happen to have a spare foot available do you? It’s not like you own it anyway…

1 Haynes’s Case (1614) 12 Co. REP. 113
2 ibid
3 Christian Lenk et al ‘Human Tissue Research: A European perspective on the ethical and legal challenges’ (1st ed, 2011) 88
4 ibid
5 Doodeward v Spence (1908) 6 CLR 406.
6 ibid
7 Ibid
8 Ibid 23 at 414