scholarly journals Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?

2007 ◽  
Vol 35 (3) ◽  
pp. 371-382 ◽  
Author(s):  
Radhika Rao

The legal status of the human body is hotly contested, yet the law of the body remains in a state of confusion and chaos. Sometimes the body is treated as an object of property, sometimes it is dealt with under the rubric of contract, and sometimes it is not conceived as property at all, but rather as the subject of privacy rights. Which body of law should become the law of the body? This question is even more pressing in the context of current biomedical research, which permits commodification and commercialization of the body by everyone except the person who provides the “raw materials.” The lack of property protection for tangible parts of the human body is in stark contrast to the extensive protection granted to intellectual property in the body in the form of patents upon human genes and cell lines. Moreover, even courts that reject ownership claims on the part of those who supply body parts appear willing to grant property rights to scientists, universities, and others who use those body parts to conduct research and create products.

Author(s):  
Cristóbal Pera

ABSTRACTIf the human body is really a fabric, should surgeons be considered architects, as some surgeons describe themselves today? The author raises and analyzes this question, and he concludes that vsurgeons cannot be considered as such: the architect is the creator of his work —fabric or building—, but the surgeon is not the creator of this complex biological fabric —vulnerable and subject to deterioration and with an expiration date— which is the human body. This body is the object upon which his hands and instruments operate. The surgeon cures and heals wounds, immobilizes and aligns fractured bones in order to facilitate their good and timely repair, and cuts open the body’s surface in order to reach its internal organs. He also explores the body with his hands or instruments, destroys and reconstructs its ailing parts, substitutes vital organs taken from a donor’s foreign body, designs devices or prostheses, and replaces body parts, such as arteries and joints, that are damaged or worn out. In today’s culture, dominated by the desire to perfect the body, other surgeons keep retouching its aging façade, looking for an iconic and timeless beauty. This longing can drive, sometimes, to surgical madness. The surgeon is not capable of putting into motion, from scratch, a biological fabric such as the human body. Thus, he can’t create the subject of his work in the way that an architect can create a building. In contrast, the surgeon restores the body’s deteriorated or damaged parts and modifies the appearance of the body’s façade.RESUMEN¿Si el cuerpo humano fuera realmente una fábrica, podría el cirujano ser considerado su arquitecto, como algunos se pregonan en estos tiempos? Esta es la cuestión planteada por el autor y, a tenor de lo discurrido, su respuesta es negativa: porque así como el arquitecto es el artífice de su obra —fábrica o edificio— el cirujano no es el artífice de la complejísima fábrica biológica —vulnerable, deteriorable y caducable— que es el cuerpo humano, la cual le es dada como objeto de las acciones de sus manos y de sus instrumentos. El cirujano cura y restaña sus heridas, alinea e inmoviliza sus huesos fracturados para que su reparación llegue a buen término, penetra por sus orificios naturales o dibuja sobre la superficie corporal incisiones que le permitan llegar a sus entrañas, las explora con sus manos o mediante instrumentos, destruye y reconstruye sus partes enfermas, sustituye órganos vitales que no le ayudan a vivir por los extraídos de cuerpos donantes, y concibe, diseña y hace fabricar artefactos o prótesis, como recambio fragmentos corporales deteriorados o desgastados, como arterias o articulaciones. Otros cirujanos, en la predominante cultura de la modificación del cuerpo, retocan una y otra vez su fachada envejecida ineludiblemente por el paso del tiempo, empeñados en la búsqueda incesante de una belleza icónica y mediática e intemporal, una pretensión que puede conducir, y a veces conduce, al desvarío quirúrgico. En definitiva, el cirujano es incapaz de poner de pie, ex novo, una fábrica biológica como la del cuerpo humano y, por lo tanto, no puede ser su artífice, como lo es el arquitecto de su edificio. A lo sumo, es el restaurador de sus entrañas deterioradas y el modificador de su fachada, de su apariencia.


Author(s):  
Justine Pila

This chapter surveys the current legal position concerning property in bodies and bodily materials. Of especial relevance in the current age of advanced genetic and other bio technologies, it looks beyond property in bodies and their materials ‘as such’ to consider also (a) the availability of rights of personal and intellectual property in objects incorporating or derived from them, and (b) the reliance on quasi-property rights of possession and consent to regulate the storage and use of corpses and detached bodily materials, including so-called ‘bio-specimens’. Reasoning from first principles, it highlights the practical and conceptual, as well as the political and philosophical, difficulties in this area, along with certain differences in the regulatory approach of European and US authorities. By way of conclusion, it proposes the law of authors’ and inventors’ rights as simultaneously offering a cautionary tale to those who would extend the reach of property even further than it extends currently and ideas for exploiting the malleability of the ‘property’ concept to manage the risks of extending it.


1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.


2017 ◽  
Vol 2017 (2) ◽  
Author(s):  
Kwan Tze-wan

AbstractIn the Shuowen, one of the earliest comprehensive character dictionaries of ancient China, when discussing where the Chinese characters derive their structural components, Xu Shen proposed the dual constitutive principle of “adopting proximally from the human body, and distally from things around.” This dual emphasis of “body” and “things around” corresponds largely to the phenomenological issues of body or corporeality on the one hand, and lifeworld on the other. If we borrow Heidegger’s definition of Dasein as Being-in-the world, we can easily arrive at a reformulation of Xu Shen’s constitutive principle of the Chinese script as one that concerns “bodily Dasein.” By looking into various examples of script tokens we can further elaborate on how the Chinese make use not only of the body in general but various body parts, and how they differentiate their life world into material nature, living things, and a multifaceted world of equipment in forming a core basis of Chinese characters/components, upon which further symbolic manipulation such as “indication”, “phonetic borrowing”, semantic combination, and “annotative derivation”, etc. can be based. Finally, examples will be cited to show how in the Chinese scripts the human body (and its parts) might interact with other’s bodies (and their parts) or with “things around” (whether nature, living creatures, or artifacts) in various ways to cover the social, environmental, ritual, technical, economical, and even intellectual aspects of human experience. Bodily Dasein, so to speak, provides us with a new perspective of understanding and appreciating the entire scope of the Chinese script.


2018 ◽  
Vol 63 (7) ◽  
pp. 29-36
Author(s):  
Thuy Chung Thi

Human body is the basement for people’s existence. All human consciousness seems to be resulted from their body. It is regarded as a subject that involved in all human activities and created thoughts as well as human values. Although through Nguyen Duy’s writing career, the poet didn’t intend to use body’s language as one of means of expression. However, the body marked a deep impression in his poetry showing the fundaments of his ideas and feelings of the subject. The language of the body in his poems tended to point out some important issues such as the origin of the body, the body in wars, and the body in poverty.


2018 ◽  
pp. 177-190
Author(s):  
Thomas Nail

This chapter argues that the spatial description of being first emerged as historically dominant in the mythology and mythograms of prehistoric and Neolithic peoples, but at the same time was also inscribed on the body of the speaker of those same mythologies through speech. Therefore, the mythological description of being as space also presupposes a kinetic and historical transformation of the human body into a speaking body. The kinetic structure of this new surface of inscription is the subject of the present chapter. The thesis that follows is that the historical coemergence of spatial mythologies explored in the previous chapter and the new kinographic technology of speech follow the same dominantly centripetal field of motion during this time.


1998 ◽  
Vol 27 ◽  
pp. 209-232 ◽  
Author(s):  
Katherine O'Brien O'Keeffe

This article explores some textual dimensions of what I argue is a crucial moment in the history of the Anglo-Saxon subject. For purposes of temporal triangulation, I would locate this moment between roughly 970 and 1035, though these dates function merely as crude, if potent, signposts: the years 970×973 mark the adoption of the Regularis concordia, the ecclesiastical agreement on the practice of a reformed (and markedly continental) monasticism, and 1035 marks the death of Cnut, the Danish king of England, whose laws encode a change in the understanding of the individual before the law. These dates bracket a rich and chaotic time in England: the apex of the project of reform, a flourishing monastic culture, efflorescence of both Latin and vernacular literatures, remarkable manuscript production, but also the renewal of the Viking wars that seemed at times to be signs of the apocalypse and that ultimately would put a Dane on the throne of England. These dates point to two powerful and continuing sets of interests in late Anglo-Saxon England, ecclesiastical and secular, monastic and royal, whose relationships were never simple. This exploration of the subject in Anglo-Saxon England as it is illuminated by the law draws on texts associated with each of these interests and argues their interconnection. Its point of departure will be the body – the way it is configured, regarded, regulated and read in late Anglo-Saxon England. It focuses in particular on the use to which the body is put in juridical discourse: both the increasing role of the body in schemes of inquiry and of punishment and the ways in which the body comes to be used to know and control the subject.


2021 ◽  
Author(s):  
◽  
Cordelia Mary Thomas

<p>Organ transplantation and biotechnological research depend on the availability of body parts, which necessitates the willing involvement of the public. The rapid development of biotechnology has led to a search for an adequate decision-making framework for the acquisition, retention and utilisation of body parts. It has also lead to disquiet about the commercialisation of research with the source being the only participant who is unable to benefit financially. In developing such a framework it is necessary to conceptualise the nature of the interest that individuals have in their bodies. The principle of autonomy may form a basis for structuring decision-making and weighing conflicting principles. As a society we value autonomy in the sense that a competent adult may make decisions about his or her own health care. The concept is that of an individual separated from others by a wall of rights. This may be of assistance as a basis for formulating competing rights, but this must then be mediated with reference to other principles. In this context this thesis applies the concepts of property interests to the human body. The purpose of this research is to consider selected bioethical issues in an attempt to formulate a principled approach to issues of consent and control over the body and its component parts. It argues that a living person should have a property interest in excised body parts during life. There should also be a property interest in the cadaver that arises at the point of death, which can be passed to the deceased's personal representative, who would be required to deal with the cadaver in accord with the previous instructions of the deceased. However, it does not argue that there are property interests in entire living persons. It does not suggest that property alone is adequate to resolve the issues, but that it should operate alongside existing concepts such as autonomy, informed consent and privacy. It proposes draft legislation to illustrate the operation of the suggested medico-legal framework. It recognises that any framework should be respectful of Maori cultural values, in light of the special position of Maori as tangata whenua, as expressed in the Treaty of Waitangi. It argues that the framework allows Maori the freedom to choose collective or individualistic decision-making, in recognition of the diversity of values within the Maori population. In addition, it considers areas where public policy might determine that the free disposition of this property interest should be restricted to protect vulnerable persons, such as incompetent persons and living organ donors.</p>


2020 ◽  
pp. 66-72
Author(s):  
Viktoriya Pogarskaya ◽  
Raisa Pavlyuk ◽  
Tatyana Kotuyk ◽  
Olga Yurieva ◽  
Nadiya Maksymova

The aim of research is to develop a new method for the production of protein plant nanoadditives from dry chickpea in the form of nanopowders and nanopastes using the processes of steam thermo-mechanical destruction, leading to a high degree of mechanical destruction of biopolymers in separate constituent monomers, without destroying the latter. The new method is based on the use as an innovation of a complex effect on raw materials of steam-thermal treatment in modern steam-thermal devices (at a temperature of +70 °C) and non-enzymatic catalysis, which occurs when using fine grinding. The proposed method makes it possible to more fully reveal the biological potential of plant raw materials and transform hardly soluble, indigestible by the human body components of raw materials (in particular, cellulose, pectin substances, proteins and their nanocomplex and nanoassociates) into components that are easily absorbed by the body. The method makes it possible to more completely remove from the raw materials inactive bound forms of individual monomers of biopolymers, to reduce the molecular weight of biopolymers. At the same time, the efficiency of the resulting product increases significantly when consumed by the human body. New additives from chickpea are fundamentally different from traditional ones in properties and physicochemical state. The developed additives act simultaneously five in one: a source of essential amino acids and other biologically active substances, structure formers, gelling agents, thickeners and yellow dyes. The obtained protein supplements from chickpeas in combination with herbal Nanoadditives (from pumpkin, carrots, lemons, garlic, celery roots, ginger) were used as recipe components in the development of a new generation of confectionery products. The resulting confectionery products differ from the traditional ones in their low sugar and fat content (up to 5 %), high content of complete protein (from 13 to 20 %). In addition, 100 g of new products are able to satisfy the daily requirement for biologically active substances (β-carotene, phenolic compounds) and 0.5 daily requirement for vitamin C. The resulting products are natural, do not contain harmful impurities and exceed the quality of world analogues


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