Body Parts and Property

Abstract

The argument of this paper is that, in Scots law, separated body parts are (and ought to be) capable of private ownership, and that on severance from the body they become the property of the person from whose body they are taken. It is further argued that, where patients consent to a medical procedure, they will normally be taken to have donated to the hospital authority any tissue removed in the course of that procedure. Both doctrinal and policy considerations are examined, including (among the former) the division of things deriving from Roman law, the boundary between property rights and personality rights, the distinction between donation and abandonment, and the doctrines of occupatio and specificatio. The argument is also developed in the light of the decision of the Court of Session in Holdich v Lothian Health Board [2013] CSOH 197, 2014 SLT 495 where, as in the English case of Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, a claim was being made in respect of distress, depression, and loss of the chance of fatherhood following damage to sperm being stored by the defenders.

Keywords: Law, Scots law, ownership of body parts, sperm, Holdich, Yearworth, division of things, donation, abandonment of property, occupatio, specificatio