Brotherton v. Cleveland: Property Rights in the Human Body - Are the Goods Oft Interred with Their Bones
![handle is hein.journals/sdlr37 and id is 443 raw text is: BROTHERTON V. CLEVELAND: PROPERTY RIGHTS IN THE
HUMAN BODY-ARE THE GOODS OFI INTERRED
WITH THEIR BONES?
The modern miracles of medical biotechnology have created uses for
human tissues unforeseeable a decade ago. Courts are split on whether
survivors have property rights in their relatives' remain& The dramatic
advances in medical science emphasize the need for courts to standardize
the legal status of rights in the human body. This determination will af-
fect the availability and methods of acquisition of human tissues for trans-
plantation and other medical uses In Brotherton v. Cleveland, the Sixth
Circuit Court of Appeals determined that an Ohio woman had a legiti-
mate claim of entitlement in her deceased husband's corneas. The ma-
jority's decision raises questions as to the proper judicial analysis for
determining property rights in human bodies. This determination gains
significance in light of current federal policies which both encourage the
donation of organs and prohibit their sale.
I. INTRODUCTION
The concept of property has been described as an aggregation of a per-
son's legally protected expectations in regard to a res.I Historically, the
designation of the living human body as property held connotations which
were morally repugnant.2 Similarly, the common law stated that there are
no property rights in a dead body.3 However, modem medical technologi-
cal advances have altered the value of the human body, from merely a source
of labor, or food for worms, to a highly prized biological commodity.4
American courts have been split between upholding the traditional rule
that no property rights exist in cadavers,5 and a rule recognizing some form of
1. ROGER A. CUNNINGHAM ET AL., LAW OF PROPERTY § 1.2, at 7 (1984). Commonly re-
ferred to as a bundle of rights, the legally protected expectations which comprise the traditional
notion of property are: (1) right to possession (jus possidendO; (2) right to exclusion (jus prohibendO;
(3) right to disposition (jus disponendi); (4) right to use (!us utendi); (5) right to enjoy profits (]us
fruendi); (6) right to destruction C]us abutendi). Id Taken together, these rights confer a complete
right of ownership. Id However, property as a right can be less than complete. d
2. See Roy Hardiman, Comment, Toward the Right of Commerciality: Recognizing Property
Rights in the Commercial Value of Human Tissue, 34 UCLA L. REV. 207, 224 (1986) (notions of
property in living persons have been associated with slavery, attachment of debtors and rape).
3. Enos v. Snyder, 63 P. 170, 170-71 (Cal. 1900) (citing Williams v. Williams, 20 Ch. D. 659,
665 (1882) (there is no property right in a relative's dead body).
4. Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. 494 (Cal. Ct. App. 1988), aff'd in part,
rev'd in part, 793 P.2d 479 (Cal. 1990). Cells taken from a spleen removed from a leukemia patient
were subsequently developed into a biological cell line which had generated a value of approximately
three billion dollars. 249 Cal. Rptr. at 499-500. The appeals court held that a living person has the
essence of a property interest in his cell line which is the ultimate right of control. Id at 534. The
dissent criticized the majority's interpretation of the state code as supporting a property right in the
human body. Id. at 535-36 (George, J., dissenting). The California Supreme Court reversed, stating
that the cell line was not the patient's property. Moore v. Regents of Univ. of Cal., 793 P.2d 479, 489
(Cal. 1990). See Michelle B. Bray, Note, Personalizing Personalty: Toward a Property Right in
Human Bodies, 69 TEx. L. REV. 209, 233-38 (discusses Moore in the context of the human body as
property).
5. Enos, 63 P. at 171; State v. Powell, 497 So. 2d 1188, 1191 (Fla. 1986), cert. denied, 481 U.S.](ViewImageLocal?handle=hein.journals/sdlr37&div=26&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Brotherton v. Cleveland: Property Rights in the Human Body - Are the Goods Oft Interred with Their Bones
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most