According to John Locke “Every man has a property in his own person”. Whether this theory can be regarded as being correct is going to be answered in this paper, as it deals with organ donation and its relation to the field of property law, especially that of new objects of property law. Due to the fact that there is an increasing development of biomedical research and technology, the human body is treated differently. Beside the many ethnical concerns, organ donation can be illuminated from a legal point of view, namely at what point in time property law plays a role and how far it can influence organ donation itself.
There is a growing need to determine whether and under which circumstances we own our organs and how we can legally transfer them to another proprietor. It cannot be denied that property law is an important topic with regard to organ donation, because beside other new objects in the field of property law, such as emission rights or virtual property, it does not only seem to be interesting but also necessary to determine whether we own our human body and its organs and how they can be transferred to another person in a legal way. Even though human organs differ from the usual objects of property law, one can principally establish the same questions as with regard to other objects of that topic, for example how ownership can be transferred. But one should keep in mind that because the human body is involved it is a highly sensitive and ethical issue.
Due to the fact that the main focus lies on property law and especially on the concept of ownership the ethical issues will not be addressed extensively, because this would be beyond the scope of this paper. Corollary, there is a central research question, namely: Can the transfer of ownership of organs within different European Union countries take place, and under which circumstances can it take place? I use a deductive reasoning method, meaning that I start with the more general issue and principles of ownership itself, in order to be able to answer the more specific research question in the end.
It seems to be interesting to find out, how the basic concept of ownership can be applied to such a specific topic as the human body and its organs....
Table of Contents
1. Introduction
2. Organ donation versus organ trafficking
3. The principle of ownership in property law
4. The human body: "A property object"?
5. If the body is property- who owns it?
6. Another viewpoint: Immanuel Kant
7. Organ donation in Germany and in Spain: Opt-in or opt-out system?
8. The UK- A case example
9. European Union and International standards
10. Conclusion
11. References
Research Objectives and Themes
This paper investigates the legal status of the human body within the context of property law, specifically examining whether human organs can be subject to ownership and legal transfer. The central research question explores if the transfer of organ ownership is permissible across different European Union countries and under which specific legal and ethical circumstances such transfers can occur.
- The intersection of property law and human body integrity.
- Distinction between voluntary organ donation and illegal organ trafficking.
- Philosophical theories of self-ownership versus Kantian non-commodification.
- Comparative analysis of opt-in and opt-out organ donation systems in Germany, Spain, and Poland.
- Evaluation of the UK's legal approach and the impact of the Human Tissue Act 2004.
- International and EU regulatory standards on organ quality and safety.
Excerpt from the Book
The human body: “A property object”?
For almost all persons it seems to be common to use possessive pronounces when talking about their bodies. We name parts of our body “my legs” and it is usual to state something about “my body”. Nevertheless there are fundamental differences when possessive pronounces are interpreted in the context of our human body. The claim to personal and therefore also territorial integrity of our human body can explain this, because under normal circumstances authorisation from the person concerned must be given in order to invade one´s property, as in the case of organ donation.
If one follows the theory that the human body is a form of property, it is still necessary to draw a distinction between the body as property, a house or a book as an object of property, because in cases of no consent for acquisition or transfer of parts of our body, such as specific organs, tissue, cells, etc., other persons are excluded from claiming any rights on a person´s body, which might be possible with regard to a house or a book.
The different practices of acquisition (gifts, abandonment, donations, sales) and the linked principle of alienation have a significant impact one the interpretation of the human body as such. Because in case the body is regarded as property, there is the imagination that only specific parts of the body, such as cells, sperms are alienable and not the whole body as such. This means that the human body is not regarded as a unity, but an object, which contains many different parts, which are individually inalienable.
Another distinction can be made between permanent and non-permanent loss of tissue: While the loss of hair and emission of sperm, for example, are already quite common in today´s society, because the temporary loss of it does not automatically lead to a loss of self-identity with regard to the own body, the permanent loss of organs is often linked to loss of identity and in the worst case death.
Summary of Chapters
Introduction: Outlines the research intent to apply property law concepts to human organs while balancing biomedical advancement with ethical sensitivities.
Organ donation versus organ trafficking: Provides a necessary definition of terms to distinguish between life-saving medical procedures and illegal, coercive organ trade.
The principle of ownership in property law: Defines the fundamental nature of property rights as the most comprehensive control a person can exercise over an object.
The human body: "A property object"?: Discusses the transition from viewing the body as a unified entity to seeing it as a collection of potentially alienable parts.
If the body is property- who owns it?: Explores the Lockean concept of self-ownership and the resulting legal implications for individual sovereignty.
Another viewpoint: Immanuel Kant: Presents the Kantian perspective that denies body ownership, arguing that donation constitutes a violation of self-preservation duties.
Organ donation in Germany and in Spain: Opt-in or opt-out system?: Contrasts national policies, examining how different consent models influence donation statistics and public participation.
The UK- A case example: Analyzes the Human Tissue Act 2004 and the specific legal controversy surrounding the Ashworth Affair regarding directed donations.
European Union and International standards: Reviews global safeguards, including WHO guidelines and EU Directives aimed at preventing the commercialization of human tissue.
Conclusion: Synthesizes the legal and ethical arguments, suggesting that organ donation serves as a regulated legal transfer of property rights.
References: Lists the academic journals, legal directives, and online sources used to support the paper's arguments.
Keywords
Organ donation, Property law, Self-ownership, Human body, Organ trafficking, Biomedical ethics, Opt-in system, Opt-out system, Immanuel Kant, John Locke, Human Tissue Act, European Union, Transplantation, Consent, Legal transfer
Frequently Asked Questions
What is the core focus of this research paper?
The paper evaluates whether the human body or its organs can be classified as "property" and if the legal mechanisms governing property can be applied to organ donation.
What are the primary themes discussed?
Central themes include the legal definition of property, the distinction between donation and trafficking, philosophical theories of self-ownership, and comparative international donation policies.
What is the main research question?
The research asks if the transfer of organ ownership can legally occur within European Union nations and what specific circumstances must be met for such transfers.
Which methodology is employed in the work?
The author uses a deductive reasoning method, moving from general property law principles toward specific application concerning the human body.
What topics are covered in the main body of the paper?
The main body covers theoretical viewpoints from John Locke and Immanuel Kant, national case studies like Germany, Spain, and the UK, and international regulations from the WHO and EU.
What are the characterizing keywords of this study?
Key terms include organ donation, property law, self-ownership, bioethics, transplantation, and legal directives.
How does the author characterize the UK's legal approach?
The author describes the UK as following an "impartial justice" approach for deceased donors, which strictly prohibits directed donations, as illustrated by the Ashworth Affair.
Why does the author argue that organ donation is more than just a gift?
The author contends that because organ donation is highly regulated by quality and safety directives, it functions as a formal, legal act of transfer rather than a simple charitable act.
What dilemma does the author identify in opt-out systems?
The author notes that if a country presumes state ownership of organs by default, it might imply that individuals never truly owned their organs to begin with, complicating the concept of a "transfer."
- Quote paper
- Julia Nichtern (Author), 2012, Organ Donation and Property Law , Munich, GRIN Verlag, https://www.hausarbeiten.de/document/215155
