a coroner recorded a special verdict for the death of a baby girl in England. 1 The coroner faced an unusual situation-a death from surgery when it was known beforehand the patient was going to die. 2 The coroner admitted that all surgeries carry a risk of mortality, but in this case the mortality rate from the surgery was known beforehand to be one hundred percent. 3 The special verdict read: "Mary died following surgery separating her from her conjoined twin, which surgery was permitted by an order of the [British] High Court, confirmed by the Court of Appeal." '4
Remediation of unjustified interference with a dead body or body part has often been problematic for courts in Canada, England, Australia, and the U.S.A., probably due to the absence of some clearly crafted conceptual underpinning for such judicial intervention. This situation has exacerbated the vulnerability of the human body and parts, which have witnessed more intense invasion by numerous biotechnological applications. Three objectives of this paper put its thematic framework in bold relief: First, to suggest an analytical structure for examining recent medical research scandals, in which some medical researchers were alleged to have illegally harvested body parts and organs from deceased persons, as witnessed in the United Kingdom, Canada, Australia, and the U.S.A. Second, to consider the appropriate remediational legal framework for the conversion or detention of biomedical inventions, like scientifically preserved cadavers for medical education or exhibition, frozen embryos, frozen human eggs and sperm, stored tissue samples, transplantable organs, and cultured human cell lines. Three, to suggest that the propertization of the human body and parts probably gives the fullest protection to the grave against its despoliation, and provides the desired deterrence against biotechnological invasion of the human body. To realize the above objectives, the paper started with a historicization of dead bodies jurisprudence, which showed that despite U.S.A.'s fictional and parochial quasi-property rule and Australia's fairly advanced property rule in dead bodies, many jurisdictions still follow the dominant and ecclesiastically influenced English no-property rule in dead bodies and parts. However, efforts were made to highlight recent judicial developments in England, Canada, and the U.S.A., which potentially promise to consign the general no-property rule in dead bodies and parts to its historical past. With little historical support of a property-rule in the human body, the paper sought a refuge in property theories. Examination of the reified concept of property, and the bundle of rights theory suggested that they might not be of any significant relevance in the rationalization of a proprietary interest in the human body and parts. This is hardly surprising since most property theories were cast in the mould of common law, which hardly had the opportunity to address itself to the human body and parts. Using biotechnology as a contemporary historical fact, it was suggested that current jurisprudence on cadavers and body parts has become anachronistic, and ought to respond to recent biomedical and economic realities. Consequently, the paper suggested four analogical ways that might recommend themselves to judicial creativity in finding a property interest in the human body and parts.
judicial review. GG art. 93. 136. This section of the Basic Law reads as follows: (1) Everyone has the right to the free development of [the] personality insofar as [they do] not violate the rights of others or offend.., the constitutional order or the moral code. (2) Everyone has the right to life and to inviolability of [their] person. The freedom of the individual is inviolable. These rights may only be encroached upon pursuant to a law. GERMAN INFORMATION CENTER, supra note 23, at 5. 137. 39 BVerfGE at 18. The opponents of the Abortion Reform Act had also maintained that the Act was illegal because it needed the approval of the upper house of parliament. However, the court did not accept this argument. Id. at 33-36. 138. Id. 139. Id. at 36-40. 140. The fourteenth day is generally the time when the fertilized egg implants on the uterine wall. Id. at 37. 141. Id. 142. 39 BVerfGE at 36.
