A Twitch upon a Thread: Regulation of human tissue use in Australia and the application of property law
thesisposted on 2023-05-27, 01:11 authored by Goold, I
Since the days of the body-snatchers, human bodies and their parts have been a valuable resource for science and medicine. They have been used for study, as the raw material for therapeutics and genetic research, as a source of transplant organs and for the creation of artistic works. In effect, human body parts are treated in many respects as items of property for they are possessed, controlled, used, transferred and destroyed. We even use the language of property to express how we experience our bodies - \I broke my arm\" \"He donated his kidney''. However the Australian legal system has baulked at placing excised human tissue within the ambit of property laws. Mosdy a consent approach is taken through legislation and ethical guidelines with the exception of some case law that has upheld limited property rights in tissue. This situation is problematic in part because these guidelines and legislation cover only some limited uses of tissue leaving the remainder in a legal vacuum. In the absence of auy clear status for tissue having been established it is not clear how the courts will or should approach alleged misuse of. In addition the doctrine of consent fails to determine who may hold rights in tissue in a variety of circumstances. As a result situations may arise where it is unclear how tissue may be used and who may use it. Given the value of tissue for biotechnology and medicine this should be remedied. One suggested approach to these problems has been the application of property law to human tissue. Due in part to the intuitive practicality of this approach given the current uses of tissue and the common law cases upholding such an approach this issue has generated considerable academic debate. This thesis seeks to examine the foundational issues that affect this debate to determine whether a case can reasonably be made for applying property law to human tissue. In drawing conclusions on the issues that face the debate this thesis lays the groundwork for developing a comprehensive legal approach to tissue use that will address the current lack of consistency in the Australian legal system's method of regulating tissue use. It is concluded that it would be possible to regulate the use of human tissue through the laws of property and that the arguments in favour of doing so outweigh those against. However this conclusion is conditioned on the recognition that these rights should be subject to certain limitations."
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