ateng_batigol

Orthodox legal and philosophical definition on
persons and things is distinct and clear cut. In
the Western world eminent philosophers of
political and legal liberty like John Locke and
Immanuel Kant are often cited to provide these
definitions. According to Kant a person cannot be
property and so cannot be owned, for it is
impossible to be a person and a thing, the
proprietor and the property.  Hence being a
person means not being a thing and being able to
own other things. Locke echoes this definition in
his book The Second Treatise of Government by
condemning slavery as it makes a person be
subjected to the will of another and hence is
infringing the freedom and autonomy of a person.
The notion of human sanctity is also reaffirmed in
many theological definitions. The status of a
human being is generally agreed to be elevated
higher than that of an inanimate thing.

A commodity on the other hand means a product,
goods, or article of trade. Hence similar
definition to what is a thing. A commodity can be
bought and sold and in order to be tradable must
have a value in a market. The commodity must also
have an owner which has property rights over it
and when is sold or bought, the rights of
ownership will be shifted respectively. Therefore
arguably the human body including any parts of it
should not be allowed to be sold or bought or else
it would be degenerated into things. This belief
brings rise to a fundamental argument that since
human beings are not things, hence even we
ourselves do not have any property rights over our
own bodies as in doing so would recognise it as a
commodity. This theory seriously backfires as
demonstrated in the case of Moore v. Regents of
the University of California. Since a person does
not have the property rights to his or her own
body, one cannot claim any monetary benefits
derived from his body substances although it was
taken from it. This case becomes an ironic example
of how the law recognises property. The law
acknowledges the property rights of the doctors
and researchers namely Golde by granting him the
patent rights as according to Lockean theory of
property he has ingeniously mixed his labour and
voila it becomes his. However the law deprives
Moore from any benefits as the law does not
recognise self-pertaining proprietary rights in
his body.

However on the other hand, to even allow human
body or even parts of it as commodity will surely
ignite furious ethical and religious debate. This
factor is probably due to the fact that the human
physical body is more than just corporeal it
relates to the personhood or personality of a
person. In modern times, technology complicates
the distinction between persons and things as it
has made selling hair, blood, organs, sperms, eggs
and even genes possible. Do these situations
infringe a persons dignity? There is a difference
on peoples response to the selling of different
body parts. The question is how should the law
make a distinction on what can or cannot be sold?
Based on the current law, justification of
property in body parts includes a mixture of its
function, scarcity, utility, and potentiality.
Despite its vital function, blood is legally
commoditised in America. This might be perceived
as less of a moral issue as blood is not scarce
and is constantly renewable in a human body.
Tissues and blood will have subsequent important
use to researchers and patient, hence it is
allowed to be commoditised. Controversially sperms
and eggs probably because it is renewable to a
certain extent are also commoditised despite of
its large significance in life making potential.
This haphazard view of the laws reflects the
conflicting and complex dimension of medicine,
science and commerce.

The law in this area has not helped this dilemma
of persons and things, at all, as demonstrated
above there is no clear line of argument over why
is a particular body part is allowed to be sold
over another. One should also take note that there
are variances between laws across the world
regarding this issue. Different standards apply
when determining which parts of the body can
legally be sold or even sold at all. European
Convention on Human Rights and Biomedicine state
that The provision [Art. 21 of the European
Convention] does not refer to such products as
hair and nails, which are discarded tissues, and
the sale of which is not an affront of human
dignity. Again, the laws are vague as it contains
arbitrary terms such as human dignity.

Ethical issues arises when body parts becomes
partially legalised as it creates a market. When
body parts becomes a commodity, the profits gained
will give an incentive to people to find raw
materials for body parts albeit through an
unethical and immoral means. .Extreme cases have
been reported includes allegations of organ
harvesting from aborted babies in the USA and
scandals of taking tissues from pregnant women as
seen in the Myriad case and in the United Kingdom
itself, the Alder Hey case where organs were taken
without consent.  The Human Tissue Bill created
soon after the scandal, proposes a regulating
authority to make sure that consent is obtained
before organs and tissues are kept by hospitals.
Partial legalisation for selling body parts also
pushes the boundaries betweens persons and things.
Another probable consequence would be creating a
floodgate where scientists will keep claiming the
legality of commoditising body parts. An example
which we now see is in gene patenting.         

However why is patenting genes more controversial
than say selling sperms and eggs? After all, there
is underlying noble intentions form all these
research for the benefit of mankind, especially
for medical purposes, diagnostic and the
therapeutic uses. The notion of using body parts
to research the essence of life is not new.
Eighteenth century culture of dissecting whole
human bodies for medical research is echoed in
Mary Shelleys fictional Frankenstein, in
similar ways the modern day scientists creates
potential life from minute chemical structures and
substances taken from human bodies. DNA generally
meets all the requirement of patentable objects as
under the European Patent Convention is new, an
invention with industrial application and is not
methods of treatment. However there is great
argument whether genes are now merely a discovery
and not an invention as the process has been
simplified through use of extensive databases and
the inalienable nature of genes. Another strong
issue is that it is against ordre public to give
exclusive rights to a single corporation over
genes which may be regarded as public property.
Patenting genes is also against moral philosophy,
religious beliefs, and environmental ethics.

In conclusion, the issue of whether or not human
body parts, least of all human genes should be
treated as commodity eludes clarity as it depends
on which moral, ethical or religious principles
you rely upon. There are certain situations which
one might justify the use of patents or property
over body parts for example to encourage research
and ultimately help cure disease and increase
quality of life. Ethical and moral issues are
compromised to meet this end.  However these
ethical and moral standards vary according to
culture, religion and region. As discrepancies
over the legality of patenting genes and
commoditising body parts becomes global to erupt
world wide as this issue becomes global, there
should seriously be consideration to create a
streamlined international law. However unless
there is readiness amongst states to compromise
and settle for uniformity in moral, ethical
standards, this suggestion will remain unfeasible.

By: Qurratul Ain Zainul

This entry was posted on Friday, February 24th, 2006 at 7:10 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.