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  • ‘There is no property in the human body.’ Discuss this statement with reference to Australian case law, such as, but not limited to, the following cases about the posthumous extraction of sperm:

‘There is no property in the human body.’ Discuss this statement with reference to Australian case law, such as, but not limited to, the following cases about the posthumous extraction of sperm:

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No property in Human Body


The recent times has property law has become a hot topic for the journals. The extent to which the law has to be interpreted has seen human tissue being subject to the scrutiny of the law. The source of the difficulty is the Anglo-Australian law definition of property and its scope. The new context of the application of the law may create conflict with the common law. The process, however, calls for the proper assessment and accessibility of the property law. This article will put into perspective the current issues in the ownership law regarding the human body.


The general rule of property law is to give the guideline on the relation between man and ‘things’. The questions, however, have been on the definition of the term property. This has always yielded different answers and justifications for them. Past jurisdictions have been the guide on the arguments as they are deemed to be well established. Difficulties arising are due to the new context of ‘thing’ and their questions of ownership. The circumstances in which things can be separated based on the new technologies. The separation of ‘things’ calls for the new definition and hence the treatment of the ‘things’ as property law may require. The main question to ask about the things is whether they qualify to be objects of property law.

The courts, as well as scholars, are at pain to explain the definition and boundaries of the ‘thing’ and how it is subject to the property law. The controversy is particularly on the posthumous extraction of sperm. This will be the focus of this article.

The primary goal however of this section is to create the attention that has been said and put on paper concerning the meaning of property specifically in the questions on the posthumous extraction of sperm. The general statement is that there is no property in the human body. Due to the emerging trends and controversies, cohesive measures have to be taken so as to resolve the conflict.

The rules to the posthumous extraction of sperm have to be made based on the terms of property laws, as a general rule. A regulatory regime will cleverly be established when a subcategory of the rules is sufficiently created.

Role of property law in posthumous extraction of sperm

The property law creates a relationship between a person and their interaction with the ‘thing’. Conflict arises when more than one person has an interaction with a thing. This is because the law defines who is the subject of the ‘thing’ at a particular moment and how the law can be enforced on it. The Australian law the definition of property is confined to certain things and new phenomena like the posthumous extraction of sperm falls outside the definition. The general rules may not one particularly applicable to this as the rules are incomplete and redundant.

In the case Jocelyn Edwards; re the state of the late Mark Edwards, the clarification on the matter was brought to court as to whether she was entitled to possession of the sperm extracted. The apparent reason was that the applicant intended to use the sperm to procure a pregnancy using the in vitro fertilization technology. The court under its inherent jurisdiction ruled for a retained control of the sperm.

The decisions by Judge Simmonds J and Martin were first published in Western Australia. The decision called for a new definition of property about the case. The ruling further brings the question on whether the body is subject to property law.

Arguments against people legally ‘owning’ their bodies, body parts, and tissue

There exist t rights as to say the right of one holding their body. These reasons can be categorized into arguments that include emotional, familial, pragmatic, economic as well as research and social. However, these are the same anchors of arguments against the legal recognition of the own body as a property interest. These cases can be explained as follows. The economic part argues against the commercialization of biological inventions while the social point talks against the body as maintained in museum collections. Further, the pragmatic point supports based on the consequences of the legal recognition for the hospitals and laboratories while the familial point claims that the blood relatives should be able to access the stored genetic material for their testing while it is not subject to one person.

There have been counter arguments on the issue. This is the case to recognize a person as having a property interest in his body. The following are the arguments. First, is on self-dominion. The simple question here is that I one does not own his body who does? It is by all means surprising to many people to find out that they do not own their bodies. However, the more concern would be controlling what will happen to their bodies rather than who owns it. Scholars have argued on how people recently have concerns on the potential uses of the body tissue as well as the genetic information. Further, most of the individuals who understand the law do not object to the donation of the body parts. Secondly, the tort law protects autonomy. It just protects anyone from being “invaded”. They do not have to own the body to get this protection. The law of negligence prohibits the health professionals from performing a procedure on a patient without their consent. It, therefore, prohibits the wrong acquisition of the body parts, unlawfully. In a case where one is rewarded for donation an organ, the law requires that compensation is one-off and should not amount to sale of the bodily material. Thirdly, is the law protection against tampering. This law protects unlawful tampering of the body organs and the body parts. The law therefore specifically protects the desecration of a corpse. The Queensland judge recently in a ruling declared that a woman is not entitled to remove a sperm of her dead husband. He stated that ‘those entitled to possession of a body have no right other than the mere right of possession for the purpose of ensuring prompt and decent disposal’: In the matter of Gray. The fourth argument is that the property rights will encourage research. This is the argument by the people who believe that the property rights shall eventually support the availability of bodily material for research and even commercial use. The recognition of the body as a property interest will act as an inducement to the people on giving gifts of their bodies as well as the opportunity to sell them. This would be good news to researchers as well because they will be able to obtain a ‘good title’ to the body parts. This will go a long way in encouraging biotechnology. Finally, the argument on the body as a property interest can be justified by the argument that it is inconsistent for a ‘donor’ of tissue to give away their right of ownership to a third party. The law recognizes stored tissue such as blood and its products as property intended for the specific purpose. The defendant in R v Rothery was found guilty of theft after he removed a blood sample for the blood-alcohol test. The Supreme Court held that the blood products are goods under the Trade Practices Act 197. This was in the case of PQ v Australian Red Cross Society. In the event of an artist in R v Kelly, the court convicted him for removing body parts of Royal College of Surgeons . His mission was to draw them. In Roche v, Douglas the court held that the Supreme Court upheld the testing of the stored tissue of the deceased genes in the case if the share of his estate. Recent years has seen the rise in the debates and concerns over the posthumous reproduction. There have been cases and legal regulations lately in Australia. The interest is usually on the reproductive materials. The media in Australia 1998 reported the case of a widow who won the right to the late husband’s body for the removal of sperm. This sparked the debate on the legal as well as ethical details of posthumous reproduction. The Victorian Supreme Court judge was Gillard J. The core issue in the court decision was the implications of the issue from reproductive autonomy. While science and technology are the trends in the world today, several policies have to be made to counter the uncertainties of the occurrences. Careful considerations must be done on whether the, in the long run, the court rulings will be beneficial or will it cause chaos.


A. Articles/Books/Reports

Australian Law Reform Commission. Essentially Yours—The Protection of Human Genetic Information in Australia, Volume 1 and Volume 2. Report 96. 2003.

Bastianon, M. P. «Aids and the Blood Bank: The Argument for Strict Liability Exemption.» U. Tas. L. Rev. 11 (1992): 191.

Cambon-Thomsen, Anne, Emmanuelle Rial-Sebbag, and Bartha Maria Knoppers. «Trends in ethical and legal frameworks for the use of human biobanks.» European Respiratory Journal 30.2 (2007): 373-382.

Bergman, Helen R. «Case comment: Moore v. Regents of the University of California.» Am. JL & Med. 18 (1992): 127.

[1976] Crim L R 691 (CA); see also R v Welsh [1974] RTR 478 (CA): urine held to be ‘property’ and capable of being stolen.

C. Legislation

Cambon-Thomsen, Anne. «The social and ethical issues of post-genomic human biobanks.» Nature Reviews Genetics 5.11 (2004): 866-873.

Chambers, Robert. An introduction to property law in Australia. 2008.

D. Treaties

Clayton, Ellen Wright, et al. «Informed consent for genetic research on stored tissue samples.» Jama 274.22 (2005): 1786-1792.

Dahl, Robert Alan. Polyarchy: Participation and opposition. Yale University Press, 1973.

E. Others

Davies, Margaret. Property: Meanings, histories, theories. Routledge, 2007.

Dole Jr, Richard F. «Consumer Class Actions Under the Uniform Deceptive Trade Practices Act.» Duke Law Journal (1968): 1101-1135.

Gray, Kevin. «Property in thin air.» The Cambridge Law Journal 50.02 (1991): 252-307.

Harris, James W. Property and justice. OUP Oxford, 1996.

Hepburn, Samantha. Australian property law: cases, materials and analysis. LexisNexis Butterworths, 2008.

Hudson, Kathy, et al. «ASHG statement on direct-to-consumer genetic testing in the United States.» American Journal of Human Genetics 81.3 (2007): 635.

Kapp, Marshall B. «Ethical and legal issues in research involving human subjects: do you want a piece of me?.» Journal of clinical pathology 59.4 (2006): 335-339.

McLean, Sheila. «Human tissue: ethical and legal issues.» BMJ: British Medical Journal 310.6992 (1995): 1423.

Moses, Lyria Bennett. «Applicability of Property Law in New Contexts: From Cells to Cyberspace, The.» Sydney L. Rev. 30 (2008): 639.

Naffine, Ngaire. «Who are law’s persons? From Cheshire cats to responsible subjects.» The Modern Law Review 66.3 (2003): 346-367.

Nelson, Erin. Law, policy and reproductive autonomy. Bloomsbury Publishing, 2013.

Preston, Brian J. «Unconventional Natural Gas in the Courts: An Overview.»Journal of Energy & Natural Resources Law 32.4 (2014): 377-424.

Price, Rohan BE, et al. Property Law: In Principle. Lawbook Company, 2008.

R v Kelly [1998] 3 All ER 741, 750.

Skene, Loane. «Arguments against People Legally Owning Their Own Bodies, Body Parts and Tissue.» Macquarie LJ 2 (2002): 165.

Skene, Loane. «PROPRIETARY INTERESTS IN HUMAN BODILY MATERIAL: YEARWORTH, RECENT AUSTRALIAN CASES ON STORED SEMEN AND THEIR IMPLICATIONS Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478.» Medical law review 20.2 (2012): 227-245.

Taylor, Richard. «Human property: threat or saviour?.» E law: Murdoch University electronic journal of law 9.4 (2002): E4-E4.

Timperley, W. R. «Human Tissue: Ethical and Legal Issues.» Journal of clinical pathology 48.11 (1995): 1074.

Sawyer, Jaggard. «All ER 189.» Court of Appeal 18 (1994).

Vadi, Valentina Sara. «Through the Looking-Glass: International Investment Law through the Lens of a Property Theory.» Manchester J. Int’l Econ. L. 8 (2011): 22.