Formalism and the Legal Status of Body Parts Michele Goodwin [email protected]

University of Chicago Legal Forum Volume 2006 | Issue 1 Article 12 Formalism and the Legal Status of Body Parts Michele Goodwin [email protected] Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Goodwin, Michele () "Formalism and the Legal Status of Body Parts," University of Chicago Legal Forum: Vol. 2006: Iss. 1, Article 12. Available at: http://chicagounbound.uchicago.edu/uclf/vol2006/iss1/12 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Formalism and the Legal Status of Body Parts Michele Goodwint Our function cannot be limited to a mere blind adherence to precedent. We must determine with the best exercise of our mental powers of which we are capable that law which in all probability will be applied ... If this means the discovering and applying of a "new doctrinal trend" ... this is our task to be performed directly and straightforwardly, rather than "artfully" dodged.1 INTRODUCTION This article addresses a narrow aspect of the body commodification debate, specifically the remedy for nonconsensual appropriation of human body parts, including tissues, bones, heart valves, and other substances unique in value to the human body. The answer to whether there is a remedy for the malfeasance of "stealing" a body part, however, depends upon how we legally conceptualize the body and rights associated with it. Is it property, a product, our mere possession (a borrowed vessel belonging to the state or god), or a service? Each of these terms embodies social values and legal statuses, both of which are significant to judicial interpretation. t Professor of Law and Director of the Health Law Institute at DePaul University College of Law. I would like to thank June Carbone, Martha Ertman, Stephen Siegel, Stephan Landsman, Dorothy Roberts and Andrew Gold for discussing these ideas with me. This article is an attempt to push the discourse on commodification beyond its immediate perimeters and to think more deeply about the legal and social status of the body and how our interpretations on this question impact biotechnology and legal claims on the micro and macro levels. This is a first attempt to stumble through the woods on par- ticular status questions and to create a clearing where others may venture to debate. I am grateful for the dedicated research assistance provided by Erin Crow. I am also grateful to Basil Cherian, Mark Premo-Hopkins, and their colleagues at the University of Chicago Legal Forum. SSpector Motor Service v Walsh, 139 F2d 809, 814 (2d Cir 1943). See also Benjamin Cardozo, The Growth of The Law 56-80 (1924) (charting the evolution of decisionmaking from pure adherence to precedent to a less rigid and more flexible approach commonly associated with shift from naturalism to pragmatism). 317 318 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2006: If the body were to be redefined as property, it would violate the established normative view of the body as a sacred, inalien- able object.2 For some the question posed might be a false one- the property interest they might suggest is not in the body itself, but in the right to the body. Yet this layer of abstraction, while certainly convenient for my perspective, is yet a matter of obfus- cation from the question itself, which technology demands that we answer. Equally, without a legal status the body is also vul- nerable to the unremedied exploitation of others. 3 Thus, as property, a legitimate claim of ownership can be made, and the abil- ity to redress nonconsensual appropriation is better established.4 If the body exists only for the purpose of carrying our souls and it is violated, it would seem that whatever cause of action that might exist is not one to be adjudicated in courts of law. A determination of whether the body is property might in- fluence the outcome of several cases currently in litigation, including whether heart valves and tissues used for donation are products, whether universities have a property claim or proprie- tary interest in research subjects' DNA and tissues, the constitu- tionality of body part conscription laws, and whether causes of action can be sustained for wrongful implantation, directed implantation, and likely a host of other foreseeable and also uni- maginable problems. This determination will be a significant factor in future product liability claims, including Miller v Hart- ford Hospital, a case involving the implantation of contaminated heart valve tissue, which is in the initial stages of litigation in Connecticut,' the final disposition of Martin v Young Kim,7 now in district court litigation in Indiana, and likely many more. 2 See Margaret Jane Radin, Market-Inalienability,100 Harv L Rev 1849, 1851 (1987) ("In conceiving of all rights as property rights that can (at least theoretically) be alienated in markets, economic analysis has ... invited us to view all inalienabilities as problematic."). 3 See, for example, Judith D. Fischer, Misappropriationof Human Eggs and Em- bryos and the Tort of Conversion: A Relational View, 32 Loyola LA L Rev 381, 381 (1999) (noting that "[a]s technological breakthroughs change the world, old legal theories may seem inadequate to address new legal problems"). 4 Id at 402-03 (advocating a torts conversion remedy for patient-victims in order to make them whole again). 5 40 Conn L Rptr 508 (Superior Ct Conn 2005). 6 See, for example, Human Aorta Valve May Qualify as Product,Ct Law Trib 33 (Jan 9, 2006) (discussing the suit against doctors and Cryolife, alleging medical malprac- tice, wrongful death and products liability based on the death of Leonard Klein who re- ceived a heart valve in a transplant that was allegedly infected with fungus). 7 See Martin v Young Kim, 2005 US Dist LEXIS 20595 (N D Ind 2005) (where a young man was killed and the parents wished to have his kidney donated to his uncle, but were denied because the coroner determined an autopsy would be necessary render- 317] FORMALISMAND THE LEGAL STATUS OFBODYPARTS 319 Anticommodification scholars wouid be right to suggest. lt we transgress, to some extent, established ethical norms and set- tled law by introducing financial considerations to the body.' A central tenet in contemporary biotechnology jurisprudence ex- empts the body from being tangible "property."' Yet, such per- spectives are also ahistorical-not of the brutality found in sev- enteenth to nineteenth century slavery in the United States-but of our immediate past and predictable future. To be sure, we may not like discussing the human body in market-like terms, with values and assessments. However, market realities in the body already exist1" and our failure to recognize this has its own set of consequences, including a sorely lacking and undeveloped no- menclature, the exploitation of human subjects, 1 a loosely moni- tored but robust market in buying and selling purloined human tissues," and an expanding, conflicting common law. 3 The rapid ing the kidneys unavailable, the court held the claim survived summary judgment because Indiana case law supported a property right in a deceased family member). 8 Consider Radin, 100 Harv L Rev at 1851 (cited in note 2) (asserting that "the char- acteristic rhetoric of economic analysis is morally wrong when it is put forward as the sole discourse of human life"). 9 See, for example, Shults v United States, 995 F Supp 1270, 1275-76 (D Kan 1998) (holding that parents of a deceased airman had no claim for conversion where portions of their son's tissues and organs were discarded after autopsy); Perry v St FrancisHosp and Med Ctr, 886 F Supp 1551, 1553 (D Kan 1995) (denying recovery for breach of contract based on the defendant's removal of more body parts than were authorized); Bauer v North Fulton Med Ctr, 527 SE2d 240, 244 (Ga Ct App 1999) (concluding that a widow could not maintain a claim for conversion based on the unauthorized removal of her husband's eye tissue); Moore v Regents of University of California, 793 P2d 479 (Cal 1990) (denying conversion claim of patient whose tissues had been nonconsensually tested, conveyed to third parties, and patented); Hasselbach v Mt Sinai Hosp, 173 AD 89, 92 (1st Dept NY 1916) (opining that a widow could not maintain a conversion claim for an unauthorized autopsy performed on her husband). See also Richard Gold, Owning Our Bodies: An Examination of Property Law and Biotechnology, 32 San Diego L Rev 1167, 1171 (1995) ("The human body and its component parts are not, however, market goods.") 10 Medical researchers, for example, partake in the market of human tissues when they obtain authorization for medical tests and samples that later result in patenting of cell lines or other similar financially beneficial medical products. See, for example, Donna Dickenson, Consent, Commodification and Benefit-Sharing in Genetic Research, 4(2) Developing World Bioethics 109 (2004) (focusing on disadvantaged populations both in the developing world and First World countries). In addition, a rather robust market in human eggs exists and is well-publicized and documented. See, for example, Kenneth Baum, Golden Eggs: Towards the RationalRegulation of Oocyte Donation,2001 BYU L Rev 107, 107-112 (2001) (discussing an infertile couple's solicitation of female students attending prestigious universities for oocyte donation and a website advertising auctions for oocytes and sperm, and documenting the resulting media coverage). 11 For a thorough discussion of exploitation of disadvantaged populations in medical research, consider Dickenson, 4(2) Developing World Bioethics 109 (cited in note 10).

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