My Body, His Property?: Prescribing a Framework to Determine Ownership Interests in Directly Donated Human Organs
Volume 80, No. 4, Winter 2007
By Erin Colleran

“Man Not Entitled to Kidney: The Appeals Court Ruled that a Florida Man Did Not Own a Kidney Promised to Him by the Widow of a Lifelong Friend”
“Fertility Clinic Is Sued Over the Loss of Embryos”
“Fertility Doctor Charged With Eggs Theft”
“Lover Wins Custody of Dead Man’s Sperm”
“Woman Has Child After Receiving Twin’s Ovarian Tissue”

Although these statements resemble the storyline of a science fiction novel or a futuristic television program, they come directly from the headlines of today’s major newspapers. Today we can donate an organ to a friend or family member at our death or during life. We can store our blood before surgery in a blood bank or place our embryos, sperm, and ova in clinical storage for future use. Modern medical science has made these possibilities today’s realities. Thus, the legal system must keep pace with science in order to provide protection, regulation, and structure in the wake of continuing scientific advancement.

Commentators note that, as technological breakthroughs change the world, old legal theories may seem inadequate to address new legal problems. Because modern technology enables organs and biological material to be separated from the human body, courts must determine if this separated material constitutes property. They also must determine if a donor, a recipient, a storage facility, a research institute, or a family member can have an ownership interest in this material.

Legal practitioners and academics alike have extensively considered whether a property interest exists in the human body or its parts. Recent cases indicate a great disparity in both the methods of analysis and outcomes of decisions involving property interests in the human body or its parts. Traditionally, courts have rejected any suggestion that body parts may be property. This reflects the common societal fear that recognizing the body as property would force people to become slaves in a market for body parts or compromise the societal regard for bodily integrity. In light of science’s rapid pace, these fears “undermine scholars’ ability to credibly engage in policy debates” on the proper place of biotechnology and medical science within the law.

Courts’ aversion to recognizing the body as property has resulted in “a sorely lacking and undeveloped nomenclature . . . and an expanding, conflicting common law” that have left many plaintiffs with no standing or recourse in the legal system. Colavito v. New York Organ Donor Network (Colavito III), a recent case, introduced the novel issue of what type of ownership interest an intended recipient of a donated organ can exercise over that donated organ. The courts’ reasoning in the Colavito cases exemplifies current concerns about the consequences of courts’ failure to recognize that modern society requires the body to be treated as a form of property in certain situations. The issue set forth by the Colavito case must be resolved to protect the autonomy and personhood of donors while providing donees with recourse in instances of misappropriation of organs.

This Comment proposes that courts should explicitly treat donated organs and bodily material as market-inalienable property, transferable by gift but not by sale. This Comment also argues that an intended recipient of a donated organ has a recognizable, limited property right in the organ that originates in the right of the donor to control the disposition of his own body

Part II.A of this Comment discusses the historical background, beginning at common law, of recognition of property rights in the human body. This Part also discusses how the Supreme Court has recognized that the property rights that states afford to next of kin in the bodies of deceased relatives constitute a property interest entitled to due process protection. Part II.B explores recent cases dealing with issues stemming from advances in medical science. This Part presents both seminal cases that spurred original discussion in this area and the Colavito case, which presents a new issue regarding property interests in the human body and its parts. Part II.C reviews the current statutory framework for organ donation in the United States. Finally, Part II.D discusses the theoretical aspect of property, specifically Margaret Radin’s personhood theory of property as applied to the human body and its parts.

Part III.A argues that courts should use Radin’s theory to consider organs and human tissue as property separate from the human body. Part III.B proposes that the donor’s right to control the use of his body parts requires that the intended recipient of an organ be granted a limited ownership interest in that organ once it is passed to him as a legal gift. This solution respects the autonomy and personhood of the donor and provides the donee with recourse for his loss of “property.”

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