Formalism and the Legal Status of Body Parts

Abstract

This article addresses a narrow aspect of the commodification debate, specifically the remedy for nonconsensual appropriation of human body parts, including tissues, bones, heart values, and other substances unique in value to the human body. The answer to whether there is a remedy for the malfeasance of "stealing" a body part, however, depends upon how we legally conceptualize the body. Is it property, a product, our mere possession (a borrowed vessel belonging to the state or god), or a service? Each of these terms embodies social values and legal status, both of which are significant to judicial interpretation.

If the body were to be redefined as property, it would violate the established normative view of the body as a sacred, inalienable object. Equally, without a legal status the body is also vulnerable to the unremedied exploitation of others. Thus, as property, a legitimate claim of ownership can be made, and the ability to redress nonconsensual appropriation is better established. If the body exists only for the purpose of carrying our souls and it is violated, it would seem that whatever cause of action that might exist is not one to be adjudicated in courts of law. This article studies whether remedies such as strict liability and takings should apply to the nonconsensual appropriation of body parts.

Keywords: tort, property, body parts, economics, strict liability, takings

JEL Classification: A1, D61, D63, I3, Z00