Donated organs, property rights and the remedial quagmire

Medical Law Review

Volumn 16, Issue 2, 2008, Pages 201-224

  Nwabueze, Remigius N ^a  

^a UNIVERSITY OF SOUTHAMPTON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CADAVER; DIRECTED TISSUE DONATION; DONOR; FAMILY; HUMAN; INFORMED CONSENT; LEGAL ASPECT; LEGAL LIABILITY; LIVING DONOR; ORGANIZATION AND MANAGEMENT; RESEARCH SUBJECT; TRANSPLANTATION; UNITED KINGDOM; UNITED STATES;

CADAVER; DIRECTED TISSUE DONATION; ENGLAND; FAMILY; HUMANS; INFORMED CONSENT; LIABILITY, LEGAL; LIVING DONORS; OWNERSHIP; RESEARCH SUBJECTS; TISSUE AND ORGAN HARVESTING; TISSUE DONORS; UNITED STATES;

EID: 47049092743     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn004     Document Type: Article

References (118)

1. Doubts have been expressed as to purity of the pedigree of the historic no-property rule in dead bodies: P.D.G. Skegg, 'Human Corpses, Medical Specimens and the Law of Property' (1975) 4 Anglo-American L. Rev. 412
2. P. Matthews, 'Whose Body? Peo-ple'as Property' (1983) 36 Current Legal Problems 19.3
3. The distinction herween organs and tissues is often blurred and might denend on the terms of a particular statute. An 'organ' is not defined in the Human Tissue Act 2004 but is loosely used here to refer to non-regenerative transplantable body parts. Compares s. 7(2) of the Human Organ Transplants Act 1989 which defined a 'human organ' as 'any part of a human body consisting of a structured arrangement ot tissues which, if wholly removed cannot be replicated by the body'.
4. An historical perspective ot some of the ethical and legal issues raised by transplantion technology is explored by Russell Scott, The Body as Property (The Viking Press, 1981).
5. For a rights-based analysis of transplantable human organs, see Cecile Fabre, Whose Body Is It Anyway? (Clarendon Press, 2006).
6. Relevant literature include P.D.G Skegg, 'Liability for the Unauthorised Removal of Cadaveric Transplant Material' (1974) 14 Med. Sci. Law 53
7. P.D.G. Skegg, 'Liability for tke Unauthorised Removal of Cadaveric Transplant Material: Some Further Comments' (1977) 17 Med Sci. Law 123
8. K. Norrie, 'Human Tissue Transplants: Legal Liability in Different Jurisdictions' (1985) 34 I.C.L.Q. 42.
9. For instance, Colavito v. New York Organ Donor Network 438 F.3d 214 (2006) - Colavito No. 2 - and also Colavito Nos. 3 and 4
10. Washington University v. Catalona 437 F.Supp.2d 985 (Dist. Ct. Missouri, 2006). There are no comparable cases in common law jurisdictions such as UK, Canada and Australia.
11. G. Calabresi and D. Melamed, 'Property Rules, Liability Rules and Inalienability: One View of the Cathedral' (1972) 85 Harvard Law Review 1089-1128. The authors posit that a legal system could choose to protect an 'entitlement' by a property rule, a liability rule or rules of inalienability. While liability rules use after-the-fact determinations of judges and juries to value the transaction in question, property rules determine the value of transactions on the basis of what the parties would have done voluntarily. Property rules, therefore, put much emphasis on contract rules. Rules of inalienability, on the other hand, apply where an entitlement is protected against sale or commercialisation, such as the prohibition of slavery in most legal systems.
12. Larry I. Palmer, 'Should Liability Play a Role in Social Control of Biobanks? (2005) 33 Journal of Law, Med. & Ethics 70-78.
13. For instance, there might be some difficulty in proving a legally recognisable psychiatric injury, or overcoming the immunity clauses embedded in organ statutes such as the gift of life laws in the USA. A similar difficulty has been noted in the context of negligent liability for a diseased or defective organ: Jean McHale and Marie Fox, Health Care Law (Sweet & Maxwell, 2007) at 1178.
14. Jonathan Montgomery has provided a good analysis of the potential liability of a defendant for the supply of a defective organ under the Consumer Protection Act 1987: Jonathan Montgomery, Health Care Law 2nd edn (Oxford University Press, 2003) at 456.
15. R v. Kelly [1998] 3 All ER 740 (CA) suggests, but does not hold, that there might be a successful criminal prosecution for the theft of a transplantable organ.
16. K. Mason and G. Laurie, 'Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey' (2001) 64 M.L.R. 710 at 727.
17. It has been suggested that an organ is 'in limbo' during the period between its harvesting and transplantation: Joseph Goldstein, 'A Kidney is Given Away, and Patient Can't Sue to Get It Back' The New York Sun 15 December 2006 (page unknown).
18. It should be noted that directed organ donation is permitted in most US states.
19. I say this with some trepidation as it is based on the widely publicised refusal by the UK authorities (in 1998) to accept a conditional donation of organs made by a deceased man's family - the condition was that the organs must be used for white people only. Department of Health, An Investigation into Conditional Organ Donation (Department of Health, 2000)
20. T. Wilkinson, 'What's Wrong with Conditional Organ Donation?' (2003) Journal of Medical Ethics 163. It is, however, conceded that a directed donation is not the same thing as a conditional donation. In the circumstances, it is more accurate to say that the issue of directed cadaveric donation remains open in the UK.
21. For instance, where the donor and intended recipient are genetically related. According, the Act allows me to make a voluntary donation of my kidney to my father and no other person. See also Human Tissue (Scotland) Act 2006.
22. For a detailed analysis of property rights in relation to harvested sperm and eggs, see Remigius N. Nwabueze, Biotechnology and the Challenge of Property: Property Rights in Dead Bodies, Body Parts and Genetic Information (Ashgate, 2007) at 66-77.
23. For excellent analysis, see Norrie, supra n. 4.
24. Elsewhere, this author has provided a deeper exploration of negligence in the context of body parts litigation: Nwabueze, supra n. 15, Ch. 5.
25. Also Norrie provides an illuminating account of negligent liability in connection with the transplantation of body parts: Norrie, supra n. 4.
26. For detailed analysis of these categories, see Remigius N. Nwabueze, 'The Concept of Sepulchral Rights in Canada and the U.S. in the Age of Genomics: Hints from Iceland' (2005) 31 Rutgers Comp. & Tech. L.J. 217-284.
27. The right to receive the whole corpse, or the conceptulisation of a corpse as capable of being complete, is disputed by Harris who regards the idea as intellectually incoherent, John Harris, 'Law and Regulation of Retained Organs: The Ethical Issues' (2002) 22 L.S. 527 at 542.
28. Notwithstanding Harris's persuasive arguments to the contrary, the concept of a complete corpse has been given judicial recognition in the USA, at least in the context of unlawful mutilation of a corpse, see Nwabueze, supra n. 18, at 251-254.
29. This means that the problem of proving the existence of a physical or pecuniary injury necessary to ground an action in negligence is avoided by attributing to the claimant a quasi-property right in the corpse of a relative.
30. A review of US jurisprudence on the point is provided elsewhere: Remigius N. Nwabueze, 'Biotechnology and the New Property Regime in Human Bodies and Body Parts' (2002) 24 Loyola of Los Angeles Int'l & Comp. L. Rev. 19-64.
31. While many US cases acknowledge that the concept of quasi-property in a corpse is a fictional remedial construct, some of the cases, however, have held that real property rights could exist in the parts of a corpse: Brotherton v. Cleveland, 923 F.2d 477 (1991)
32. Whalley v. County of Tuscola, 58 F.3d 1111 (6th Cir. 1995).
33. An action could be brought by both the donor and the intended recipient or one of them. The problem of determining which of them is the real 'owner' of the donated organs is highlighted in the next section.
34. Compare the Western Australian Supreme Court case of Roche v. Douglas [2000] WASC 146 where the physicality of the body part was a factor that contributed to its 'propertisation'. In that case, the court observed that 'it defies reason to not regard tissue samples asf property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality'. Ibid.
35. Urbanski v. Patel [1978] 84 D.L.R. 3d. 650.
36. Sirianni v. Anna, 285 N.Y.S. 2d 709 (1967).
37. CNN.com, 'Girl Tops Transplant List After Error' 19 February 2003; posted on http://edition.cnn.com/2003/HEALTH/02/18/transplant.error/ index.html (last visited on 20 may 2007).
38. It does not, however, seem that the Human Tissue Act 2004 is capable of dealing with this type of situation. For one thing, criminal sanctions are provided only for breach of the statutory consent requirement which arguably does not extend to intentional destruction of a donated organ. Because meaningless destruction of an organ is not one of the permitted uses for which consent can be sought any argument based on the Human Tissue Act 2004 is likely to be misplaced.
39. R v. Kelly, supra n. 9.
40. Historically, a negligence suit cannot lie for an intentional and direct conduct. But it is arguable that any foreseeable injury resulting from the destruction is actionable in negligence.
41. The matter is tortious or criminal but not contractual, and it does not come within any of the four known categories of privacy. For the analysis of these categories of privacy in relation to body parts, see Remigius N. Nwabueze, 'Interference with Dead Bodies and Body Parts: A Separate Cause of Action in Tort?' (2007) 15 Tort Law Rev. 63.
42. US v. Arora, 860 F.Supp 1091 (Dist Ct. Maryland, 1994).
43. Ibid, at 1098. This case is also significant for holding that there could be property rights in bodily tissues.
44. Ibid, at 1099.
45. It is difficult to determine the owner of donated organs between the donor and the intended recipient. This is an area that could be explored in future research and writing. At this time, it is suggested that both the donor and the intended recipient should be recognised as having property rights in the donated organs.
46. For a good exploration of some of the provisions of the Act, see Kathleen Liddell and Alison Hall, 'Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue' (2005) 13 Med. L. Rev. 170-223.
47. For instance, the New York Public Health Law s.4306(3): 'A person who acts in good faith in accord with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceedings for his act'.
48. R v. Kelly, supra n. 9.
49. Doodeward v. Spence [1908] 6 CLR 406.
50. In the same vein, Gage J. held in AB v. Leeds Hospital NHS [2005] 2 WLR 358 that the defendants (rather than parents of the deceased children) were entitled to the blocks and slides produced by their application of skill and labour upon the tissues of the claimants' deceased children.
51. R v. Kelly, supra n. 9, at 750.
52. Mason and Laurie, supra n. 10, at 728.
53. David Price, 'From Cosmos and Damien to Van Velzen: The Human Tissue Saga Continues' (2003) 11 Med. L. Rev. 1 at 30.
54. Colavito v. New York Organ Donor Network, No. 2 438 F.3d 214 (2006).
55. New York's version of the Uniform Anatomical Gift Act.
56. Colavito v. N.Y. Organ Donor Network, No. 1, 356 F.Supp.2d 237 at 241-247 (E.D.N.Y. 2005).
57. That argument does not, however, make a sufficient distinction between the recognition of a property right in the body or parts of it and the use of such property. In other words, the recognition of a property right does not necessarily lead to commercialisation. For instance, the fact that I own my house does not mean that I must turn it into a shop or brothel.
58. Moore v. Regents of the Uni. of Cal. 793 P.2d 479 (1990). This case is more fully analysed in the succeeding sections.
59. Colavito, No. 2, supra n. 44, at 224.
60. Colavito No. 2, supra n. 44, at 225.
61. Ibid.
62. J.W. Harris gave a good analysis of the rhetorical value of body ownership: J.W. Harris, 'Who Owns My Body' (1986) 16 Oxford Journal of Legal Studies 55-84.
63. For instance, the no-property and property rules.
64. This is an objective that is also supported by the no-property rule, but that objective is practically unattainable in the operation of no-property rule.
65. As Margaret Brazier poignantly observed: 'Absent proprietary claims in your corpse, you are rendered defenceless in death'. Margaret Brazier, 'Retained Organs: Ethics and Humanity' (2002) 22 L. S. 550 at 564.
66. That is, between the objectives of protection (non-commodification), means of protection (no-property) and the result achieved. The no-property rule actually results in less protection for the human body and this is reflected in the common defence of modern day 'body hunters' and erstwhile graverobbers to the effect that there is no property right in the human body.
67. The idea of protective boundaries delineated by property rights was highlighted in the analysis of Charles Reich's seminal article: Charles A. Reich, 'The New Property' (1964) 73 Yale L.J. 733-787.
68. That assumes the existence of a battery action in the first place. This assumption is misplaced if we take the view that there can be no battery of an excised body part.
69. It has also been observed that a consent framework could be disempowering in its inability to confer continuing control over an excised tissue: Graeme Laurie, Genetic Privacy: A Challenge to Medico-Legal Norms (Cambridge University Press, 2002) at 312.
70. Foskett v. McKeown [2001] 1 A.C. 102 at 129 WLR 1299 (HL), per Lord Miller.
71. Is there no enrichment where the misdirection benefits the transplant surgeon's spouse, child or family member?
72. In such cases, the complaint is that organs donated to the recipient are lost through their misdirection, not that the recipient's privacy is infringed. Similarly, the donation of organs is statutorily regulated based on the principles of altruism (as in the UK) rather than contracts and markets. Although transplantation treatments are arguably contractual, organ donation is not controlled by the principles of contract since that will encourage the commercialisation disavowed by most organ statutes.
73. The extreme difficulty of proving causation in body parts litigation is analysed by Larry I. Palmer, supra n. 7.
74. Dickens supports a property approach to donated organs and observes that in 'contrasting remedies for negligent mishandling [of human body organs] under property concepts with those under alternative principles of law, informed consent and fiduciary duty principles will have little to offer if they center on physicians' intentions that are undisclosed prior to acquiring the body materials': Bernard M. Dickens, 'Living Tissue and Organ Donors and Property Law: More on Moore' (1992) 8 J. Contemp. Health L. & Policy 73 at 88-89.
75. Ritter v. Couch, 76 S.E. 428 (W. Va. 1912).
76. The certified questions were: (1) Whether the applicable provisions of the New York Public Health Law vest the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit sounding in the common law tort of conversion or through a private right of action inferred from the New York Public Health Law? (2) Whether the New York Public Health Law immunises either negligent or grossly negligent misconduct? (3) If a donee can bring a private action to enforce the rights referred to in question (1), can the claimant recover nominal or punitive damages without demonstrating pecuniary loss or other actual injury?
77. Colavito v. New York Organ Donor Network (No. 3), 8 N.Y.3d 43 at 53 (2006, CANY).
78. Ibid., at 53.
79. Ibid., at 56
80. Ibid., at 57.
81. Colavito v. New York Organ Donor Network (No. 3), 8 N. Y. 3d 43 at 53 (2006, CANY).
82. Ibid., at 53.
83. Ibid., at 56.
84. Ibid., at 57.
85. Colavito v. New York Organ Donor Network (No. 4), 2007 WL 1462399, 1 at 3. (2nd Cir. N.Y).
86. This would arguably lead to a criminal prosecution under s.45 of the Human Tissue Act 2004. There could also be a claim under the Data Protection Act 1998.
87. The law of negligence does not redress mere mental anguish.
88. W.P. Keeton et al. Prosser & Keeton on Torts, 5th edn (West Publishing Co., 1988) at 849-868.
89. Conversion clearly attaches when property given for a particular purpose is used for another purpose: All Cargo Transport, Inc. v. Fla. East Coast Ry Co., 355 So.2d 178 (Fla. 3d DCA, 1987).
90. In two cases relating to unapproved or unauthorised test, the claimants lost on all their non-proprietary claims, although a conversion claim was not canvassed: Doe v. Dyer-Goode, 389 Pa.Super. 151 (Pennsylvania Sup. Ct., 1989)
91. Hecht v. Kaplan, 221 A.D.2d 100 (Sup. Ct. New York, 1996).
92. Washington University v. Catalona 437 F.Supp.2d 985 (Dist. Ct. Missouri, 2006).
93. Ibid., at 994.
94. Ibid.
95. Ibid., at 997.
96. Ibid.
97. Ibid., at 1002. An appeal is currently pending in the US Court of Appeals Eight Circuit.
98. Greenberg v. Miami Children's Hospital Res. Inst. 264 F.Supp2.d 1064.
99. Emphasis is put on the conversion claim since it was the cause of action that directly raised the issue of property right to body parts.
100. Greenberg, supra n. 83, at 1074.
101. Ibid.
102. Bowman v. Secular Society Ltd. [1917] A.C. 406.
103. Ibid., at 436.
104. For instance, a properry ruie. tor donated non-regenerative organs and a no-property rule lot regenerative body parts.
105. In this section, attention is focused mainly on body parts other than organs meant for transplantation.
106. Fabre provides an excellent philosophical defence of the conscription of cadaveric organs and living body parts: Fabre, supra n. 3, at 73-125.
107. The majority did not. however, foreclose the possibility of a property-based rule in the future: Moore, supra n. 48, nr 493.
108. Much of this was conceded in the majority judgement: ibid.
109. Gerald Dworkin and Ian Kennedy, 'Human Tissue: Rights in the Body and Its Parts' (1993) 1 Med. L. Rev. 291 at 308.
110. Jonathan Herring4 and P.L. Chan, 'My Body, Your Body, Our Bodies' (2007) 15 Med. L. Rev. 34 at 54.
111. Ibid., at 54.
112. Ibid., at 40-42.
113. For instance, Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on Setting Standards of Quality and Safety for the Donation, Procurement, Testing, Processing, Preservation, Storage and Distribution of Human Tissue and Cells; Council of Europe: Additional Protocol to the Convention on Human Rights and Biomedecine Concerning Transplantation of Organs and Tissues of Human Origin, 2002.
114. Colavito No. 2, supra n. 44, at 225.
115. Ramirez v. Health Partners of S. Arizona, 972 P.2d 658 (Ariz. 1998).
116. That is, the period in which thev are 'in limbo': Goldstein. supra n. 11.
117. Nwabueze, supra n. 31.
118. Dworkin and Kennedy, supra n. 94, at 310.