Rethinking Body Property
69 Pages Posted: 8 Nov 2019
Date Written: 2016
Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow and breast milk suppliers.
This Article contributes to these pressing debates in two ways. First, it uses original historical research to demonstrate that the morally inflected gift/commodity dichotomy is a historical artifact, neither universal nor inevitable, and thus need not be the assumed basis for law and policy. Second, in a novel use of the intellectual history of property, it brings body products for the first time into the framework of recent progressive property scholarship to rethink body property.
The first body products, disembodied breast milk and blood, entered medicine at the turn of the twentieth century. I argue that for a half century, these body products were property-in-action, bought and sold as a means to the medically defined ends of advancing recipient and supplier health. The dichotomy and condemnation of sales emerged only later, as body products transitioned to property-at-law. I argue that the focus on supplier compensation was not a needed correction to marketplace harms, as commonly assumed, but rather a result of (i) medical opposition to single-payer health care, (ii) product liability law, and (iii) racism. This transition, analyzed in light of historical trends in property theory, is revealed as a shift to a narrower understanding of body products as property, presumed to satisfy only the individual preferences of market participants.
Using this analysis, this Article offers guidance for rethinking body property. Exposing body product exceptionalism within the law of property, this Article uses history to demonstrate how body products, like other forms of property, can have purposes beyond individual preference satisfaction. In place of regulation focused on banning market-alienability, the law of body products as property can be theorized and rewritten to focus on the ends of patient treatment and public health, incorporating the use of regulated markets to serve the goals of increased access to medical treatment while also avoiding supplier exploitation.
Keywords: body products, property, breast milk, blood, kidneys
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