Property Rights in the Human Body

Most people would instinctively say they own their own body. In law, however, the position is far less intuitive.

The long‑standing rule in the UK, and in many other jurisdictions, is that there are no property rights in the human body. For most people, this has no practical impact. But for others, especially in the context of modern science and reproductive technology, the consequences can be deeply problematic.

As medicine advances, courts are increasingly confronted with questions that the traditional “no‑property” rule was never designed to answer.

Should judges continue applying rules developed long before organ transplantation, IVF or genetic engineering existed? Or should the law evolve to reflect the realities of contemporary science?

This article examines whether the current consent‑based framework is still adequate, or whether the law should recognise property rights in parts of the human body, particularly reproductive material.

The Current Legal Landscape

Questions about legal interests in the human body arise in many contexts: selling body parts, ownership of reproductive material, and intellectual property rights over cells or DNA.

The UK has never developed a fully consistent approach. The prohibition on property rights began with corpses, but over time was extended to living bodies.

In R v Bentham [2005], the House of Lords confirmed that a person cannot legally “possess” their own body part, a principle that led to Bentham’s conviction for possessing an imitation firearm being overturned because his concealed hand could not be considered “property”.

“The law in the UK…has not developed a consistent approach to establishing the legal status of the human body.”

The Work‑and‑Skill Exception

A narrow exception emerged in Doodeward v Spence (1908), an Australian case involving a preserved two‑headed foetus. Because lawful skill had been applied to preserve it, the court held that a property right could vest in the person who performed the procedure.

This principle was later confirmed in R v Kelly [1999], where preserved or dissected body parts were held capable of being “property” under the Theft Act 1968.

Intellectual Property and the Body

Scientific developments have stretched this exception further. In the American case Moore v Regents of the University of California (1990), researchers patented a lucrative cell line derived from Mr Moore’s spleen.

The court held that Moore had no property right in his own cells, meaning he could not claim conversion, even though the researchers profited from material taken from his body.

“I do not have a property right in my own body, but another person can generate a property right in products from my body.”

This paradox highlights the tension at the heart of the current law.

Arguments Against Ownership and Their Problems

A common argument against recognising property rights in the body is the fear of exploitation: that ownership could lead to commodification or even a slide back toward slavery‑like practices.

But the current position creates its own contradictions. Individuals cannot exploit themselves, for example, by selling organs to escape poverty, yet others can exploit their bodily material through patents or commercialisation.

A Turning Point: Yearworth

In Yearworth v North Bristol NHS Trust [2009], the Court of Appeal recognised a property right in stored sperm.

Six men undergoing chemotherapy had their sperm frozen for future use; when the samples were negligently destroyed, the court held that they did own their sperm for the purposes of suing in negligence and bailment.

This was a significant step beyond the work‑and‑skill exception. But the judgment has been criticised for failing to articulate a clear underlying principle, leaving uncertainty about how far the property paradigm extends.

Embryos: A Special Case

Embryos are unique: they are not a product of one person’s body, but of two, and now, potentially three.

In standard IVF, an embryo is created in vitro and later transferred into the woman. Recent advances, such as mitochondrial donation (“three‑person IVF”), allow genetic material from a third person to be incorporated to prevent mitochondrial disease.

Under the Human Fertilisation and Embryology Act 1990, as amended in 2008, embryos are regulated through consent, not property. Schedule 3 sets out the consent requirements for storage and use.

The Limits of Consent: Evans v Amicus Healthcare

Consent gives each party a veto, but no positive right to control the embryo. This can lead to deadlock, as seen in Evans v Amicus Healthcare [2003].

When Ms Evans’ partner withdrew consent after their separation, she was prevented from using the embryos. Her appeals, including to the Grand Chamber of the European Court of Human Rights, failed.

The result was unsatisfactory: Ms Evans lost her chance of motherhood, the embryos were destroyed, and significant resources were wasted. The problem would be even more complex with three‑person IVF.

A property‑based model could, in theory, give one party a clear right of control and offer greater protection to embryos, an argument often raised by those who view embryos as early human life.

Could Yearworth Apply to Embryos?

The key questions are whether the reasoning in Yearworth could extend to embryos. Are embryos sufficiently like gametes? And if so, who would the property right belong to?

There is a strong argument for vesting ownership in the woman undergoing treatment, given the biological and physical burdens she bears throughout gestation and childbirth.

Yearworth: Promise and Problems

In Yearworth, the men argued:

• personal injury
• damage to property
• breach of bailment

The court rejected the personal injury claim but accepted the latter two, recognising ownership of the sperm.

This was a positive development, but it leaves unanswered questions:

• Is the property right limited to gametes?
• Can it extend to embryos?
• Could it apply to other tissues or organs?
• What principle justifies the right?

Critics argue that without a clear doctrinal foundation, Yearworth is an unstable precedent.

“Yearworth has been criticised for jumping to find a property right…without identifying an underlying principle…”

Conclusion

The legal status of the human body; its parts, tissues and reproductive material, remains unclear and inconsistent.

Yearworth was a step forward, but it did not establish a firm foundation for broader reform. Meanwhile, scientific and medical advances continue to expose contradictions in the current consent‑based framework.

The law must eventually confront these issues. Whether through judicial development or legislative reform, clarity is needed, and the pace of scientific progress means the need will only grow more urgent.