The Law of the Body

Abstract

This article posits that a “law of the body” is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially-defined categories for resolving question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot – at any point in our lives – “own” our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property. This article supplies that piece of this byzantine puzzle. Specifically, the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body.

Moreover, the article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that these objections are predicated on a series of misunderstandings. These misunderstandings generally fall into three categories: misunderstandings about the nature of “property;” conceptual misunderstandings about bodies and selves and the capacity to own oneself; and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body. Once these misapprehensions are clarified, the intellectual path will be cleared for a “law of the body” to emerge, and legislators, courts, and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends.

Keywords: Moore v. Regents of California, Moore, body parts, property, property theory, in rem, bundle-of-rights, commodification, organs, subject object problem, ownership