A. The Way We Were

If we are to evaluate the significance of Yearworth, we must locate the decision within the constellation of property-in-the-body cases. In short, at the risk of reciting a well-known story, we must nonetheless ‘begin at the beginning’.Footnote ²⁰

The general legal prohibition against property in the whole body finds its origin in the context of corpses,Footnote ²¹ the doctrine having been expounded in the seventeenth century,Footnote ²² and reiterated in a host of cases thereafter, including R. v. Lynn,Footnote ²³R. v. Sharpe,Footnote ²⁴Foster v. Dodd,Footnote ²⁵R. v. Price,Footnote ²⁶ and Williams v. Williams.Footnote ²⁷ While this doctrine worked some mischief in body-snatching scenarios,Footnote ²⁸ an all-too-common practice in the 1700s and 1800s,Footnote ²⁹ it has generally endured. For a more recent legal articulation of permissible actions with respect to the corpse, the HTA 2004 is useful; it permits ‘donation’ and ‘possession’ (storage and use) of a dead body by persons licensed by the Human Tissue Authority, and embodies in statute the common law exception which permits ownership (discussed below).Footnote ³⁰ And what of the living (whole) body? Aside from that lamentable period in human history when slavery and human ownership were legally recognised,Footnote ³¹ the prohibition against property has also included living bodies, the position being that unauthorised interference with a living body is an invasion of a personal, not a proprietary, right.Footnote ³² Most recently, note R. v. Bentham,Footnote ³³ wherein the House of Lords held that a person does not ‘possess’ his body or any part of it.

The prohibition was also applied to parts of the body, though the dubiousness of the rule – so described in Doodeward v. Spence,Footnote ³⁴ and Miner v. Canadian Pacific Railway Co,Footnote ³⁵ – has permitted the property paradigm to encroach slowly upon the prohibition in this setting. In Doodeward, the High Court of Australia recognized third party ownership in a still-born two-headed foetus preserved some 40 years previously. The court held that the lawful exercise of skill which gave the body attributes differentiating it from a mere corpse founded a right to proprietary possession. In Moore v. University of California,Footnote ³⁶ a US case focused on intellectual property, the majority held that a third party could have a proprietary interest in excised tissue, but not the originator of that tissue. This led Broussard J, dissenting, to observe that, “the majority's analysis cannot rest on the broad proposition that a removed part is not property, but … on the proposition that a patient retains no ownership interest in [an excised] body part … .”Footnote ³⁷

In the UK, the court in R. v. Kelly,Footnote ³⁸ recognised property rights in excised body parts where they had been subjected to dissection, preservation or otherwise acquired different attributes by the application of skill.Footnote ³⁹ While the court questioned the origin of the ‘application of skill’ principle, it acquiesced to common law precedent, suggesting that it was Parliament's responsibility to intervene if deemed appropriate. In A.B. v. Leeds Teaching Hospital NHS Trust,Footnote ⁴⁰ in response to claims of negligence for psychiatric injury and for wrongful interference with the body in relation to the manner of obtaining parental consent to post-mortems and body parts retention, the court confirmed both the no-property rule and the ‘application of skill’ exception, holding that the post-mortem examinations were lawfully executed and therefore capable of giving the pathologist possessory rights to retained samples. Ultimately, the court refused to create a common law tort of wrongful interference with, or conversion of, the body where none previously existed. The HTA 2004 statutorily entrenches the ‘application of skill’ exception, permitting licensed persons to remove, store and use material (including human cells, but not embryos outside the human body or hair and nails, from the body of a living person) for a number of purposes, including, inter alia, obtaining scientific or medical information about a living or deceased person, research, and transplantation.Footnote ⁴¹

With respect to products produced by the human body, prosecutions for theft were sustained against those who stole products from those in lawful possession of them in R. v. Herbert (lock of hair),Footnote ⁴²R. v. Welsh (urine sample),Footnote ⁴³ and R. v. Rothery (blood sample).Footnote ⁴⁴ But it was in Hecht v. Superior Court of L.A. County,Footnote ⁴⁵ that an originator was (finally) found to have a proprietary interest. In that case, a man deposited sperm in a bank for his partner's later use, a disposition he articulated in his will. The California Court of Appeal distinguished Moore and held that the testator had a proprietary interest in his genetic material (sperm) under probate law and could bequeath it to his partner, an act which implicitly recognised the proprietary nature of the material, and the testator's proprietary interest therein.

So how does Yearworth fit into the stream? Quite neatly in some respects, and rather uncomfortably in others.

As can be seen, there has been a readiness to recognise the right to control the human body and its parts and products, and there has been a gradual expansion of the persons entitled to exercise those rights. Thus, with respect to corpses, there has been a recognition of rights to possession by survivors and other legally recognised interested parties.Footnote ⁴⁶ With respect to excised body parts and products, there has been a recognition of a fuller bundle of rights, including the acceptance of commercialisation and markets.Footnote ⁴⁷ And while tissue originators were usually left without rights in these settings, even that bulwark of the common law came down (in Hecht). Viewed against this backdrop – with its examples of judicial dissatisfaction with the property prohibition – Yearworth is inarguably predictable and cannot be considered an ‘outlier’; it is ‘the next step’ in the slow creep of the property paradigm.

Having said that, it should be recognised that the rulings in this stream of cases are often pragmatic fixes to practical problems; they are ad hoc solutions based on what is thought at that moment and within the context of the specific facts of the case to be in the interests of justice. The stream has evolved in fits and starts and rights have been extended unevenly. Thus, while some parties could claim rights of property, there was no self-ownership, and while commercial trade in human bodies, parts and products (and the property on which such commerce relies) had been accepted, the lingering uneasiness with property as a blanket solution meant that the prohibitions continued to affect tissue originators. In short, while this history does represent an evolution toward the property paradigm (with ‘property’ featuring to different degrees in the decisions), it is not a conscious and principled development of the property paradigm, and it never explicitly engaged with self-ownership. Yearworth is distinguishable in that it does engage with, and extend, self-ownership, though this might not be seen as a surprising or unpredictable progression.

B. The Good, the Bad, and the Unanswered Questions

There are some aspects or some achievements of Yearworth that are clearly good. First, by its open and explicit recognition that parts and products of the human body may be the subject of property without the acquisition of different attributes by the application of skill, it has potentially cleared away a piece of legal artifice that has bemused commentators for some time.Footnote ⁴⁸ Second, by extending the right of ownership to originators of human tissue, the Court has thrown into question an inadequately justified and much criticised limitation on rights attaching to biomedically valuable tissue; it may have taken a first step toward treating all participants in the new bio-society equally, and therefore reduced a clear injustice (if it is accepted as something more than a fact-specific quick fix). Third, by its finding of property, and its associated opening up of bailment law to tissue originators, it has widened the possibilities for recovery where interference and/or loss occurs.

But how has it managed the extension of property? In this regard, it has not performed quite so well. Consider first the finding of a property right itself. Having rights (even sole rights) of control over something does not require or even necessarily imply property.Footnote ⁴⁹ Property is merely one negotiated and evolving legal concept which permits us to organise society according to a particular value system and/or in pursuit of particular goals. Unfortunately, the conceptual foundation of the Court's finding of a (new) property interest is not entirely clear, and neither the brief reference to Honoré, nor the discussion of statutory consent adequately fill the lacunae. From whence does this property interest derive and why has it been so late in its recognition? Given the moral debates around property in the body and the contentiousness of commodifying the body,Footnote ⁵⁰ this is a philosophical, ethical and policy question which should have been addressed as directly as was the Court's concern for the ‘application of skill’ exception.

It has been suggested that a neo-Lockean natural rights view might have motivated the finding of property.Footnote ⁵¹ Recall that, classically, the natural rights approach views the earth as granted res communis to all humankind by God, and considers that unclaimed material combined with labour gives rise to individual ownership.Footnote ⁵² Of course, this approach has been challenged as ‘nonsense upon stilts’.Footnote ⁵³ In any event, such a foundation is not obvious given the dearth of attention paid by the Court to ethical/moral or conceptual foundations. Alternatively, one might argue that the evolution of the jurisprudence and the Court's reference to the need for the law to keep pace with medical practice suggest a social constructivist approach. Under this approach, property is viewed as a social arrangement that is not fixed, but evolves with society's needs.Footnote ⁵⁴ Presumably, this approach underwrote Honoré's eleven relational factors which, if enough of them are present, might found a proprietary relationship between person and subject.Footnote ⁵⁵ Having reference to this list, Campbell suggests that we may claim that our bodies and their constituent parts are our property, but he asserts that this conclusion does not solve the intimately related moral issues of the consequence of this for commodification and trade.Footnote ⁵⁶ He concludes that a property approach is not particularly satisfactory because the body is not merely a vessel, but rather an integral, lived-in part of the embodied self, and our obvious but often misunderstood relationship with ourselves, others, and the earth gives rise to a certain ambiguity around the body.Footnote ⁵⁷

The point is that the Court failed to ground its finding of property, or to engage meaningfully with the very rich and important bioethical and legal scholarship on the subject. It even failed to apply the eleven factors of Honoré in a rigorous manner. The Court might have used the unfairness argument advanced by Broussard J. in Moore as a platform to discuss deeper and broader issues of justice and equity in arriving at its conclusion, but it did not. Rather it simply held that the entitlements and limitations under the HFEA 1990 and the need for the law to evolve naturally crystallised into a right of control, which the Court declared to be an ownership and indeed a property right. While this might not be a particularly mighty leap, the fact that one (property) does not necessarily follow the other (control), it was a leap that demanded a lot more justificatory work.

In the end, we are left to wonder at the foundation and appropriateness of the Court's conclusion that the claimants rightly have a property interest in their body products or parts.Footnote ⁵⁸ How is the finding of property conceptually defended? On what moral foundations is the finding of property based? Might a better (more palatable) basis than property be developed that adequately protects originator interests, abilities to recover damages, and contribution to, and participation in, the new bio-economy? In relation to the ‘application of skill’ exception, it has been argued that ‘These … unresolved questions demonstrate that the [underpinning] legal principle … has not been adequately identified or articulated. Without a clear underlying principle the exception cannot develop in a coherent manner.’Footnote ⁵⁹ The same can be said of the Yearworth finding of property itself.

We might also wonder what work the property paradigm is being asked to do. It is not clear what bundle of property rights have been extended to originators. Practical questions that remain are:

• • Is this putative extension of property (and the availability of damages for mental distress) dependent on the fact that gametes – which might be differentiated from other tissues – are in issue?Footnote ⁶⁰ How should non-reproductive tissue be approached?

• • What is the scope of originators' rights to treat with their own body and parts? What, now, is the potential for originators of tissue to participate in bio-markets?

• • Where and how does dignity and other important moral values fit into the new regime? Are they justificatory factors for the (new) right or restraining factors on its exercise (ie: autonomy might be used to justify the existence of a property right and dignity might be used to restrict its exercise).

• • On what basis do we differentiate body parts and products from whole bodies, living or dead, and what about material taken for transplantation into another or back into oneself?

There are two consequences of these important outstanding questions: (1) both the existence and exercise of the property right are in question; and (2) both the nature and scope of Yearworth as a general precedent are in some doubt. These and other questions will almost certainly be tested in future cases as the Yearworth decision is probed, but little instruction can be gleaned from this ‘root’ case itself.Footnote ⁶¹

A. The Way We Are

In evaluating the significance of Yearworth in this principle-arena, we must now re-contextualise it, this time with respect to judicial trends on the issue of the individual's position as a value- and aspiration-holder in medical treatment settings.

Traditionally, courts had fairly consistently shown deference to the medical profession in determining that profession's duty and standard of care owed to patients, and in determining the best interests of patients. Conversely, there was only a grudging acceptance of the right to self-determination by patients and, related thereto, the principle of autonomy.Footnote ⁶⁵ The classic example is, of course, Bolam v. Friern Hospital Management Committee,Footnote ⁶⁶ in which the House of Lords queried (from the profession) what the standard of care should be based on “a responsible body of medical opinion”.Footnote ⁶⁷ In Sidaway v. Board of Governors of the Bethlem Royal Hospital,Footnote ⁶⁸ the House of Lords went so far as to say that professional (medical) judgement could determine what information to provide to the patient when the patient was deciding how to proceed (and whether to give consent to a procedure).Footnote ⁶⁹

Changes in judicial attitudes have, however, occurred, partially as a result of the adoption of the Human Rights Act 1998. In fact, they are discernable as early as the late 1990s, when the House of Lords took back control (contrary to the Bolam precedent) by requiring that medical opinion must have a logical basis,Footnote ⁷⁰ and when the Court of Appeal held that information disclosure decisions must be grounded on a prudent patient test.Footnote ⁷¹ These cases were followed by McFarlane v. Tayside Health Board,Footnote ⁷² and Rees v. Darlington Memorial Hospital NHS Trust,Footnote ⁷³ both wrongful conception cases. In McFarlane, which concerned the birth of a healthy child to healthy parents after a failed vasectomy, the House of Lords rejected the negligence-based claim for damages associated with raising the child, but permitted general damages. Importantly, Lord Millett stated that the parents “have lost the freedom to limit the size of their family [and have] been denied an important aspect of their personal autonomy,” thereby entitling them to damages.Footnote ⁷⁴ In Rees, a healthy child was born to a disabled mother. Again, the negligence-based claim for the costs of raising the child were rejected, but “conventional damages” were viewed favourably by Lord Bingham, who held that the opportunity to live one's life in a way wished and planned should not be negligently interfered with by another.Footnote ⁷⁵

More recently, in Chester v. Afshar,Footnote ⁷⁶ the House of Lords again recognised autonomy (or self-determination) as a key health-related principle. In that case, the patient suffered from chronic pain. Surgery was advised and ultimately performed. Absent negligence in the performance of the surgery, the patient suffered nerve damage, which is a known risk of very small likelihood but potentially significant consequence. The patient had not been informed of this particular risk. As noted, negligence in the surgical procedure could not be shown, so the claimant alleged negligent failure to warn/inform. However, it was also generally accepted that she could not prove that her injury was caused by the negligent failure to inform (i.e. she could not show that she would never have undergone the surgery had she known about the risk). Nonetheless, the court found in her favour. Lord Steyn viewed consent as protecting “respect for autonomy and dignity” (in addition to physical integrity),Footnote ⁷⁷ Lord Hope focussed on “the right to choose”,Footnote ⁷⁸ and Lord Walker was concerned with the human right to “make one's own decisions”.Footnote ⁷⁹ In short, at the cost of well-established negligence principles, the court awarded the claimant damages for her loss, in this case being the right to exercise autonomy by making an adequately informed choice.

All of these cases demonstrate that courts have decreasingly shown deference to medical professionals and increasingly tried to provide remedies to aggrieved patients under the broad rubric of choice, linked to consent which is, in turn, linked to the ethical and legal value of personal autonomy. In the latter cases, particularly McFarlane, Rees and Afshar, they have done so to vindicate affronts to patients' autonomy and/or dignity. In doing so, they have allowed claims which do not fit comfortably with existing and well-grounded legal doctrines; in a sense, the harm was to choice itself, a rather strange and alien legal interest.

How does Yearworth fit into this stream? Again, rather neatly. In Yearworth, the Court arrived at an arguably surprising conclusion on tissue-originator property rights so that the claimants could access remedies that are available under the common law (eg: through negligence). In fact, in a commendable example of clairvoyance, the Court opened a new issue – bailment – and invited submissions thereon, which issue was wholly dependent on the finding (for the first time in the UK) of originator property interests in bodily products. We would therefore characterise Yearworth as ‘the next step’ in the gradual slippage of well settled principles (whether they be the negligence-based requirements of causation or the long-standing prohibition against people owning their bodies or parts or products thereof). It is an example of the slow and selective dissolution of principles in favour of pragmatism.

B. A Fist Full of Problems

The decision in Yearworth and its characterisation against the above line of cases gives rise to a number of problems of which we will focus on two. The first relates to the tendency of the above cases and of Yearworth to provide a remedy in the face of difficult legal hurdles to same. The second relates to the tendency in these cases, and again inferred from Yearworth, to base justice-motivated remedies on vague notions of autonomy. We will consider each problem in turn.

It is certainly laudable to wish to provide a remedy where a loss has occurred, particularly where that loss is consequent on an identifiable party's action or inaction. At a certain level of abstraction, a fair-minded and rights/ethics-oriented approach which identifies just outcomes and remedies and which reasons toward those outcomes/remedies cannot be condemned.Footnote ⁸⁰ However, in the absence of well conceived foundations and well articulated limits, such an outcome-oriented approach will become deeply problematic in practice. One might view the Court's property approach as a natural if pragmatic justice-providing vehicle, but the use of property seems to have been used primarily as a (reflexive) means to make the claims fit within the accepted parameters of negligence (i.e. property was found because of the need for there to be a loss to property if not to the person in order for the claims to sound in damages; it was inductive rather than deductive reasoning).

Without wishing to belabour the foundational issues discussed above, it is worth reiterating that the significance of the court's finding in Yearworth (i.e. the finding of property against the weight of precedent) demanded something more, from a remedy-justifying perspective, than the passing references made to the need for the common law to advance.Footnote ⁸¹ In this regard, the Court cited R. v. Kelly,Footnote ⁸² wherein Rose L.J. noted that the common law does not stand still, and that a future case may arise in which it becomes appropriate to characterise body parts as property without the need to change their attributes through work or skill.Footnote ⁸³ Of course, the common law must advance, but when it does so, it should do so in a clear and defensible way. The rather uninspired and uninspiring advancement of the property paradigm in Yearworth suggests that property was only used as a convenient vehicle through which to achieve a certain outcome. But the property model could lead to numerous harms, including exploitation and the dehumanisation of patients and people more generally.Footnote ⁸⁴ Thus, from a justice-protecting perspective, much will depend on how Yearworth is treated as a precedent.

Inductive reasoning aside, there appears to be some growing judicial affinity for a free-standing right to autonomy. Such a right could lead to the improper modification of longstanding negligence principles to the detriment of the law and legal predictability, and to the detriment of the health system and patients.Footnote ⁸⁵ We have already expressed concern over their apparent modification to allow for recovery when one's autonomy has been affronted:

Yearworth may have moved us closer to an answer to our question, but it moves us in a manner which does not fit comfortably into the mould this stream of cases originally cast. Rather than diminish or avoid traditional negligence principles (such as causation or the need for physical injury), Yearworth reinterprets property so as to comply with the negligence need for loss/injury, and in doing so, it joins ranks with the above precedents. The Yearworth Court extended the property paradigm in an effort to give a remedy (in negligence) to sympathetic claimants who suffered a blow to their autonomy – in this case the ability to have a family life that their ailments might have robbed them of but for the existence of modern medical technologies, which, in this case, were deployed negligently. That the Court is concerned with the claimants' (potential) loss of the ability to “live the life they had wished and planned for” (to borrow the language used in Rees) is suggested by the following:

Its keen cognizance of autonomy and the protection of individualistic claims relating to the self is further suggested by its heavy reliance on the statutory provisions which erect consent (an autonomy-based legal tool) as a gate-keeping mechanism to legitimate certain dealings associated with the human body. By its apparent awareness of the claimants' autonomy interests, Yearworth fulfils the promise of the above stream and represents another in this growing line of cases which is reshaping or abandoning old practices in an effort to provide new remedies.

Given the machinations in Yearworth, the questions of whether there exists a pure “right to autonomy” and/or a right to a remedy for loss of autonomy-based choice (unaccompanied by physical damage) still remains. In this regard, we might take notice of the fact that autonomy has already been recognised as an important principle underlying several of the rights found in the European Convention on Human Rights (1950).Footnote ⁸⁸ If a free-standing autonomy right is ultimately found to exist, we might also take notice of the fact that, once a human right has been recognised, an adequate remedy for its breach must be provided.Footnote ⁸⁹ As we inch closer to a (currently vague) autonomy right (as opposed to autonomy-based rights), it behooves the courts to ground soundly, define precisely, and delimit rationally the right, and to align it with existing legal doctrines without destroying those doctrines in the process. Some explicit appreciation of the wider consequences of such a judicial movement would also not go amiss.