property in the body

where did ‘no property in a dead body’ originate from

stretches back to Coke’s Institutes in the 17th century.

back then the body was regarded as sacred and untouchable, and the law mirrored that social attitude. The notion of property was tied to control, transferability, and use, things that just did not apply to the deceased

Haynes [1614]

Mr. Haynes was accused of stealing burial sheets from graves.

Since a corpse itself was not property, he technically had not stolen anything meaning the law could not recognise ownership over the body.

Theft of the corpse only became a concern when it involved items attached to or worn by the deceased, like clothing or personal effects.

This led to locals putting pieces of clothing in the mouth of the deceased in order to obtain some sort of protection for their deceased loved ones.

Willians v Williams [1882]

the deceased had left instructions in his will for a friend to take care of his body in a particular way

he executors refused to reimburse the friend for the costs incurred, and the court held that since a body cannot be the subject of property, the deceased had no ability to dispose of it through a will.

Courts were concerned with maintaining public decency and respecting moral norms rather than allowing someone to exercise what we might now think of as property rights over a corpse.

Doodeward v Spence [1908]

This case recognised that a human body, or part of it, can become property if it is subjected to a degree of work or skill

The case involved a preserved two-headed stillborn baby displayed in a jar, which a collector later purchased.

The High Court of Australia held that so long as the body parts use did not violate public decency, then the body part could be considered as property.

This meant that the human body could become property if someone puts work or skill into preserving, transforming, or displaying it.

This is known as the “work and skill” exception, which has become a key consideration in how and when body parts can legally be treated as property and it is thought to be the most significant recognition of property rights in separated human material from a deceased body.

Moore v Regents of the University of California

John Moore had his spleen removed for cancer treatment, and the hospital used his cells to develop a commercially valuable cell line without his consent.

Moore argued that he continued to own the cells when they were removed from his body and should profit from them.

The court rejected his claim to property but recognised the importance of informed consent and fiduciary duties.

The court distinguished between mere possession and ongoing control.

Once tissue is removed, the person does not automatically retain ownership, but there is still a strong argument that the individual should have rights over how it is used.

This distinction laid the groundwork for future cases involving stored gametes and reproductive material.

Yearworth v North Bristol NHS Trust

Six men had stored sperm in anticipation of cancer treatment that would likely render them infertile.

Due to negligent storage, the sperm samples were destroyed.

The court recognised the sperm as property, emphasising the control retained by the men over their reproductive material.

This was a significant development because it directly challenged the traditional “no property” principle.

The court's reasoning was that the sperm had been produced and stored for the men’s own future use, and they retained management and use rights over it.

Sets out a precedent for recognising property rights in human materials, this recognition is only confined to control rights, and even if ownership rights do exist, this does not necessitate a finding of property as the foundation of the Courts finding was not entirely clear

Hecht v. Superior Court of Los Angeles County

tackled property claims over cryopreserved sperm.

William Kane had left explicit instructions for his sperm to be left to his partner after his death.

A dispute later arose with his children over his estate.

The court acknowledged the sperm as Kane’s property for succession purposes, largely because he retained control over how it was to be used while alive.

this decision hinges on intention and control. If a person goes to the effort to preserve bodily material for a specific purpose, courts are more willing to recognise a property interest.

Dobson v North Tyneside Health Authority

the preservation of a deceased woman’s brain for autopsy purposes was deemed insufficient to qualify as property.

The preservation was procedural, aimed at establishing the cause of death, and lacked the transformative purpose seen in Doodeward

This demonstrates that not every act of preservation or removal will create property, courts are still cautious in this regard.

it often appears that courts only turn to the work and skill exception when they have no other legal basis available, using it more as a last resort than a preferred approach

Jocelyn Edwards; Re the Estate of the Late Mark Edwards

cases where the person did not leave clear instructions behind, in this case, where sudden death occurs

Courts struggle to find a solution here, especially in urgent applications where sperm must be retrieved within hours of death.

In many of these cases, judges often allow the retrieval of gametes but refuse to make any decision about posthumous conception until a later period.

This is often not because they oppose posthumous reproduction, but rather they do not have enough evidence of the deceased’s wishes

Courts often allow retrieval as a temporary holding measure but refuse to authorise posthumous conception without explicit consent.

Gamete retrieval is treated as a temporary, reversible step, whereas posthumous reproduction is not.

facts;

• In this case, Mr Edwards died suddenly after a workplace accident, leaving behind his wife, who was also the administrator of his estate. The court allowed her to both retrieve and use his sperm, reasoning that it was extracted “for her purposes” and fell under her authority as estate administrator.

• The court here treated the sperm as quasi-property as it could be controlled, managed, and used by someone other than the donor, provided the action aligned with the deceased’s intentions.

• This case shows that under certain circumstances courts are willing to recognise rights akin to ownership or control over gametes, especially when statutory schemes or consent requirements would otherwise prevent posthumous reproduction.

R v Human Fertilisation and Embryology Authority ex parte Blood

a widow wanted to use her husband’s sperm after his death, but the law stated that written consent under the Human Fertilisation and Embryology Act 1990 was mandatory.

Without it, posthumous conception could not go ahead.

The court had no choice but to prioritize complying with statute, highlighting that while the desire to preserve reproductive potential is understandable, consent remains central

G v Human Fertilisation and Embryology Authority

the parents of a deceased adult woman applied to retrieve her eggs posthumously claiming that their daughter had verbally consented to posthumous conception.

The court refused, emphasising that there was no evidence she had consented to egg retrieval or expressed a wish to have children.

Here, the courts reinforced that without clear consent, even retrieval would not be allowed. Both cases illustrate that the law protects bodily integrity and autonomy, and posthumous reproduction cannot occur unless consent is explicit

current legislation for AHR in ireland

The Health (Assisted Human Reproduction) Act 2024

The Health (Assisted Human Reproduction) Act 2024

Establishes that the use, storage, and retrieval of gametes and embryos require the explicit, informed consent of the donor.

This consent can be withdrawn, effectively giving individuals control over their reproductive material even after it has been removed from their body.

By establishing statutory consent requirements, the Irish law creates a system that allows decision-making and control without fully categorising gametes or embryos as property.

Human Tissue (Transplantation, Post-Mortem, Anatomical Examination and Public Display) Act 2024

governs the removal, storage, and use of human tissue in Ireland, focusing on consent and purpose.

The Act permits tissue to be removed for therapeutic, research, or educational purposes, but only with the donor’s consent or, in the case of deceased donors, the authorisation of the next of kin.

This echoes the approach taken in English and Australian cases, where courts have emphasised that the purpose for which a body part is used is a key factor in determining whether it may be treated as property.

Article 22 of the Council of Europe’s Convention on Human Rights and Biomedicine

use of tissue or gametes beyond the original consent is not permissible