The Body as Me and Mine: The Case for Property Rights in Attached Body Parts.

• Author: Singh, Amitpal C.

Introduction I. Separation and Separability A. Possession (Or Lack Thereof) B. Alienability C. Owners as Distinct from Their Property D. Detachment and the Prospect of Reunification II. The Body as Me (And My Instrument) III. Private Law, Private Wrongs, and the Body IV. Rejecting the Jurisprudence of the Separation Thesis Conclusion Introduction

The legal maxim, "no one is to be regarded as the owner of his own limbs," has a long pedigree in the common law, and in Roman law before that. (1) On this view, the body is res nullius--nobody's thing. (2) In the common law, this rule has its origins in eighteenth and nineteenth century criminal prosecutions concerning the treatment of corpses. (3) The rule has since transcended those origins; it has been consistently applied in civil disputes concerning body parts, even where these disputes concerned the separated body parts of living persons. Recently, however, this longstanding legal orthodoxy has softened. Courts have begun to allow for property in body parts. But the law still insists that the body as a whole is res nullius; body parts must be separated from the body to become res. (4) I call the view that separation is morally transformative in this way the "Separation Thesis."

This prompts (at least) two interesting questions. Why think that separation from the body is normatively transformative in a way that the law should track? And what would be gained or lost by allowing for property in attached body parts? In this paper, I argue that the law has good reason to recognize property rights in (some) body parts, attached or not. In doing this, I reject the Separation Thesis. Others have argued that personal rights (5) may stretch beyond our bodies to include objects such as prosthetics and wheelchairs. (6) Here, I argue that there is a second frontier between personhood and property, viz., within our bodies. There can be property in body parts, and personal rights in things outside the body. All of this scrambles the intuitive alignment of our persons with our bodies, and property with the "outside world."

I proceed as follows. In Part I, I canvass the best arguments for the Separation Thesis: first, that tangible property must be possessable to be ownable, and that only separated body parts can be "possessed"; second, that property is essentially alienable, and body parts are inalienable until separation; third, that owners and what they own must be distinct, meaning that owners cannot own parts of themselves; and fourth, that only those body parts that have no ability to reunify with the body become property upon separation. The prospect of reunification (or lack thereof) is thus revealed by separation. I argue that, on closer scrutiny, none of these arguments succeed. If separation from the body is not morally transformative, and we can have property rights in detached body parts, then we can have property in our bodies. In other words, less than the entirety of my body is me, and the rest is mine. In Part II, I argue that this position is also normatively attractive because it grounds a right to the parts of our bodies that are not necessary to our being separate moral agents, and explains why certain "artificial objects" that fulfill bodily functions can become a part of our persons. In Part III, I turn more directly to private law. I show that this view lucidly captures both the proprietary and personal wrongs one commits when one excises a body part from another's body without their consent. As a result, this account offers a clearer way to address legal disputes concerning body parts than the existing jurisprudence, a claim I develop in Part IV.

1. Separation and Separability

   I have discerned and developed four credible arguments for the proposition that something of normative significance occurs when a body part is detached from the body, such that the body part can thereby become the subject of a property right. (7) Let me preface my discussion by clarifying what exactly these arguments must show. At present, the law insists that I cannot own my body part until that body part is separated from me. (8) The law also makes separation a sufficient condition for ownership of a body part; once separated, something "ownable" comes into being. (9) In this way, as Christopher Essert helpfully analogizes, the law treats the separation of a body part from a whole body as akin to the birth of a wild animal or a meteor hitting earth. (10) So, we are in search of an argument that will explain why actual separation from the body is both necessary and sufficient for property in body parts. (11) My primary purpose in developing these arguments is to show that they do not actually vindicate the Separation Thesis. (12) At the same time, discussing these arguments will yield important insights useful to developing the idea that there can be property in our bodies. Seeing just how these arguments err will be worth our while.

   1. Possession (Or Lack Thereof)

      Why might separation make a difference? One thought is that body parts must be possessable to be ownable; but when a body part is attached to one's body, it is incapable of being possessed. In R v. Bentham, Lord Bingham marshals this point, writing: "One cannot possess something which is not separate and distinct from oneself. An unsevered hand or finger is part of oneself. Therefore, one cannot possess it." (13) This argument has an intuitive ring to it. When I move my body, all of it comes along with me. I don't do anything without my body. This suggests that I do not really possess my body parts, including my fingers.

      Let me develop the thought from Bentham a little further before offering a response. Possession seems conceptually different from my relationship with my body in the following respect. Possession can be contrasted with periods of non-possession. Roughly, I can only possess something if there are possible occasions where I do not possess it. In this way, the law seems to track an ontological separation between me and what I can possess, such as my pen. I am not in physical contiguity with my pen at all times, and that is precisely what makes my pen capable of being possessed. The occasions in which I do not possess my pen reveal this. In light of this Bentham-ite thought, the law s insistence on separation looks less mysterious. Separation changes a body part from res nullius to res because body parts become capable of being possessed when separated. For instance, I can hold my severed finger in (what is left of) my hand. (14) Possessing my finger in this way was impossible when my fingers were attached to my hand.

      Plausible as this sounds, I think this development of Bentham does not vindicate the Separation Thesis. The reflections above do suggest that separability is a necessary condition for something to be ownable; that much in Bentham is true. Yet this does not mean that actual separation is the occasion at which some part of my body becomes something ownable. This is a point I will emphasize frequently in this section. Actual separation is neither necessary nor sufficient for property in body parts.

      To see that separation is not a sufficient condition for the creation of a property right, notice that a body part can be detached from my body without ushering in a change in the kind of right I have over that body part. One way to put this point is that personhood need not end at the biological limits of one's body. When my finger is sliced off in a kitchen mishap, many would agree that I am the one who has the strongest claim to the finger. (15) I am the finger's biological source, after all. (16) But this does not require that my finger become ownable. We could maintain that the finger remains a part of my person despite separation; this is, in fact, Essert's view about the detached finger. (17) So, in general, separation underdetermines whether the right to a body part is "demoted" to a property right or remains governed by a personal right. Thus the view in Bentham does not tell us why separation should have moral significance as a sufficient condition for the creation of property rights in body parts.

      Moreover, we should be wary of taking cues about what is ownable from the notion of possession. Recall the Bentham court's argument. The court couches its reasoning as a series of conceptual claims about the nature of possession which syllogistically produce the conclusion that we do not possess our fingers. Yet the notion of possession is notoriously Janusfaced; possession has both a factual and legal meaning. On a lay, factual understanding, possession is a person's relationship to a thing that is "characterised by a high degree of physical and mental control over the thing." (18) Holding a pen in my hand looks like a core case of lay, factual possession. By contrast, where a legal rule decides whether one is in pos session of something, then legal possession--possession in a technical sense--is at play. As Simon Douglas explains, legal possession is both broader and narrower than factual possession. (19) Legal possession can be far more expansive. Consider Dunwich v. Sterry, a case about a trespass action concerning a whisky barrel that had washed ashore. (20) The plaintiff held a franchise over objects washed upon the shore, and so had a property right in the barrel. The barrel was removed by the defendant. The case turned on whether the plaintiff, who had no physical proximity or even knowledge of the existence of the barrel, had "possession" of the barrel. The court found that he did, holding that his right to possess the barrel furnished him with a kind of constructive possession. (21)

      Legal possession is also narrower than factual possession, in that normative considerations can drown out paradigmatic instances of physical possession. R v. Bass was decided at a time when criminal liability for theft required the thief to have removed the chattel from the possession of its...