Table Of ContentOWNERSHIP OF THE HUMAN BODY
Philosophy and Medicine
VOLUME 59
Editors
H. Tristram Engelhardt, Jr., Center for Medical Ethics and Health Policy,
Baylor College ofM edicine and Philosophy Department, Rice University,
Houston, Texas
S. F. Spieker, Massachusetts College of Pharmacy and Allied Health Sciences,
Boston, Mass.
EUROPEAN STUDIES IN PHILOSOPHY OF MEDICINE 3
Editors
Henk ten Have, Catholic University, Nijmegen, The Netherlands
Lennart Nordenfelt, Linkoping University, LinkOping, Sweden
H. Tristam Engelhardt, Center for Medical Ethics and Health Policy, Baylor
College of Medicine and Philosophy Department, Rice University, Hous-
ton, Texas
S.F. Spieker, Massachusetts College of Pharmacy and Allied Health Sciences,
Boston, Massachusetts
The titles published iri this series are listed at the end of this volume.
OWNERSHIP OF THE
HUMAN BODY
Philosophical Considerations on the Use of the
Human Body and its Parts in Healthcare
Edited by
HENK A.M.J. TEN HAVE
Catholic University of Nijmegen
Center for Ethics and
Department of Ethics, Philosophy and History ofM edicine,
Nijmegen, The Netherlands
and
JOS V.M. WELlE
Creighton University,
Center for Health Policy and Ethics,
Omaha, Nebraskn, U.S.A.
with the collaboration of
STUART F. SPICKER
Emeritus Professor of Community Medicine and Health Care,
School of Medicine, University of Connecticut Health Center,
Farmington, Connecticut, U.S.A .
and
Professor of Philosophy and Healthcare Ethics,
Massachusetts College of Pharmacy and Allied Health Sciences,
Boston, Massachusetts, U.S.A.
.....
SPRINGER-SCIENC'E+B'USI NESS MEDIA, B.V.
A C.I.P Catalogue record for this book is available from the Library of Congress.
ISBN 978-90-481-5059-5 ISBN 978-94-015-9129-4 (eBook)
DOI 10.1007/978-94-015-9129-4
Printed on acid-free paper
All Rights Reserved
© 1998 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1998
Softcoverreprint ofthe hardcover1st edition 1998
No part of this publication may be reproduced or utilized in any form or by any
means, electronic, mechanical, including photocopying, recording or by any
information storage and retrieval system, without written permission from the
copyright owner.
TABLE OF CONTENTS
HENK A.M.J. TEN HAVE and JOS V.M. WELlE I Medicine, Ownership,
and the Human Body 1
PART I I OWNERSHIP ISSUES IN CLINICAL CARE
AND BIOMEDICAL RESEARCH
BELA BLASSZAUER I Autopsy 19
FRIEDRICH HEUBEL I Defining the Functional Body and its Parts:
A Review of German Law 27
HUB A.E. z:w ART I Why Should Remunerated Blood Donation be
Unethical? Ethical Reflections on Current Blood Donation Policies
and Their Philosophical Origins 39
WIM J.M. DEKKERS and HENK A.M.J. TEN HAVE I Biomedical Research
with Human Body "Parts" 49
PART II I THE HISTORY AND CONCEPT OF
BODY OWNERSHIP
DIEGO GRACIA I Ownership of the Human Body: Some Historical
Remarks 67
ZBIGNIEW SZAW ARSKI I The Stick, the Eye, and Ownership of the
Body 81
PART III I MEDICAL INTERVENTIONS
AND STATUTORY FOUNDATIONS
JOS V.M. WELlE and HENK A.M.J. TEN HAVE I Ownership of the Human
Body: The Dutch Context 99
ANNE FAGOT-LARGEAULT I Ownership of the Human Body: Judicial
and Legislative Responses in France 115
vi TABLE OF CONTENTS
PART IV I OWNERSHIP OF THE BODY:
THEORETICAL PERSPECTIVES
KEVIN w. WILDES I Libertarianism and Ownership of the Human
B~ 1C
PAUL SCHOTSMANS I Ownership of the Body: A Personalist
Perspective 159
UFFE J. JENSEN I Property, Rights, and the Body: The Danish Context
- A Democratic Ethics or Recourse to Abstract Right? 173
FRANZ J. ILLHARDT I Ownership of the Human Body: Deontological
Approaches 187
MARTYN EVANS I The Utility of the Body 207
NOTES ON CONTRffiUTORS 227
INDEX 229
HENK A.M.J. TEN HAVE
JOS V .M. WELlE
MEDICINE, OWNERSHIP, AND THE HUMAN BODY
I. INTRODUCTION
One of the earliest illustrations of an autopsy performed on a human body
is depicted in the image of a fourteenth-century physician, Guido de
Vigevano, gently embracing the vertically positioned body he has opened
with his lancet. The physician's facial expression reflects a sense of
hesitation, even apology, for invading his fellow human being's bodily
integrity [2].
Six centuries later we no longer consider it .a n affront to perform
autopsies, or even completely to dissect human corpses. Indeed,
cremation has become an acceptable funeral ceremony among most
religious communities. We not infrequently extirpate organs from
cadavers and living donors and transplant them into the bodies of
desperate recipients. Immediately after death is declared we permit
medical students to practice intubation techniques on the newly-dead and
use human corpses to test the crash safety of automobiles. We clone
human tissues in the process of producing pharmaceuticals, and some
have considered cloning the human fetus to produce spare organs that are
always in short supply.
The development of biomedicine is now associated by the public with
changing views of the human body: it is no longer viewed as integral to
the human individual (the Latin individuum meaning "what cannot be
divided any further"). We have learned with the evolution of modern
medicine to consider the human body, both as a corpse and as a living
organism, as a machine-like construct, a useful instrument, even a
marketable commodity. We purchase blood from "donors," trade organs
in a world-wide market, patent human tissues and cell lines. The body (or
at least its parts) has become property, owned by both the "incorporated
person," and "incorporated ftrms."
H.A.M.J. ten Have and J. V.M. We lie ( eds. ), Ownership of the Human Body, 1-15.
© 1998 Kluwer Academic Publishers.
2 HENK A.M.J. TEN HAVE AND JOS V.M. WELlE
II. OWNERSHIP OF THE BODY
The increasing influence of the moral principle of respect for individual
autonomy in health care ethics has become associated with the popular
image of the body as property [4]. It is assumed that an individual is an
autonomous subject, that his or her body is his or her private property and
that the person is thus the sovereign authority and possesses property
rights over his or her body. Since an autonomous individual is said to
"own" his body, he apparently possesses an exclusive right over it; he
alone has it at his disposal. One can bequeath one's body to an anatomical
institute, donate one's body parts for transplantation, or sell one's bodily
materials in the open market. Indeed, bodies and body parts can be
acquired and manipulated by others, though explicit permission may be
required from their owners.
The use of property language has recently appeared in health care
ethics to designate the locus of decision-making authority: the individual,
as owner, retains control over his or her own body. In view of the ever
increasing medical possibilities to intervene in the human body as well as
the creation of new possibilities for using body parts in research and
commercial enterprises, it has, according to some, become necessary to
protect individuals from harmful and unwarranted paternalistic bodily
interventions. At the same time, the concept of body ownership is morally
as well as epistemologically problematic. If one distinguishes not only in
thought between 'a person' and 'hi~ body' this conflicts with the
existential or lived identity of our bodies as our selves - embodied selves.
The concept of 'ownership', moveover, has recently been introduced in
ethical debates with regard to medical genetics [5][20]. A major issue is
the justification for the patentability of human genes. Making the human
genome subject to property laws presupposes the relevancy and
applicability of the ownership concept in this context. One basic question
is: Is it morally permissible for anyone to "own" the human genome? If
the answer is "yes" and ownership is judged appropriate in regard to
genes, further questions arise that bear on who, precisely, is the owner of
this genetic material. Is it the individual with a particular phenotype? Do
geneticists, scientists, or corporate executives have a moral right to assert
property claims over particular genes or nucleotide sequences? Or, is the
human genome the "property of humankind" - "the common heritage of
humanity," as is proclaimed in a recent UNESCO declaration? [23]
MEDICINE, OWNERSHIP, AND THE HUMAN BODY 3
Ill. OWNERSHIP OF BODY PARTS
In the extant literature, the starting point for the analysis of the relation
that obtains between the human body and the concept of ownership are
the property rights that are characteristic for ownership. If a person is the
owner of an object, this does not imply that he has one right only with
regard to the object. Ownership is a complex collection of claim rights,
duties, powers, and immunities. As a paradigm of ownership, reference is
often made to A.M. Honore's concept of 'full individual ownership' [14].
Honore compiled a list of standard "incidents of ownership." Although
the incidents are not, taken individually, necessary conditions for private
ownership, they may, however, together be sufficient for full individual
ownership. The standard incidents include: 1. the right to possess a thing;
2. the right to the exclusive use of a thing; 3. the right to manage it; 4. the
right to its income; 5. the right to the capital, i.e., the right to alienate
(transfer) the object, and the liberty to consume, waste or destroy the
object; 6. immunity from expropriation; 7. the power to bequeath it; 8. the
absence of term; 9. the prohibition of harmful use; 10. liability to
execution; and 11. residuary character. This list is useful as a frame of
reference in order to determine different modes of ownership.
With regard to ownership of the human body, it is possible to
distinguish among three positions: (1) no ownership of the human body
and its parts, (2) no full ownership of the body, but limited property rights
with regard to body parts, and (3) full ownership of the body and its parts.
( 1) No ownership of the human body and its parts
One way to acquire insight in the concept of the human body is to
examine how we talk about our own body [17]. Sometimes we identify
our self with our body ("He kicked me"), at other times we distance our
self from our body ("He kicked my leg"). The use of the possessive
pronoun suggests some mode of possession; but does "possession"
amount to ownership? Is my body my property, or is it me - or both? The
question really is whether some of the characteristics of ownership may
be coherently applied to one's body. For example, can I disown or
'alienate' my body as I can 'alienate' my book? How did I acquire
'ownership' of my body? I did not labor for it, and I did nothing to
deserve it. Is it a gift? How should I behave toward a gift? Can I dispose
of it as I please? Considering the interpreting features of our body, we
