Health Care Law Project

Ruchi Sharma – BC0140049

Abstract: As technology has advanced there are new dimensions asserted to how we see our
own bodies and what relationship does one have with his or her own body in simple words
what kind of autonomy one possess over his body parts and how has the current legal
framework dealt with the issue of as to what extent an individual has autonomy, privacy and
property rights over body parts and organs. The issue has led to many complexities in the
area of medical and bioethics in health law. Most of the individuals are not aware about the
possible implications of issues like do they even have rights over tissues, blood, cells, organs
separated from their body but the issue is of serious nature as being unable to have control
over one’s own body parts leads to several uncertainties in the present health care law
regime. The paper the current meaning of consent in India and analyse the legality of the
same for the same, it is first necessary to consider the existing legal framework regarding the
status of the human body by analysis of prominent judicial decisions.

Keywords: Autonomy – Cells – Consent – Ethics – India – Property rights – Organ

transplant

1. INTRODUCTION

The biotechnological advancements have led to new inventions and ways to treat the diseases
in spite of these the general perception is that there is no property rights in human body and
seems to be a implied or expressed law all legal frameworks as most individuals live their
lives quite happily without giving any thought on what can be the possible implications of
unable to own their own body or body parts with increasing developments in science and
medicine the human body is now seen as a source of commercialisation by many through
organ transplant to sperm and tissue donor banks. The courts seem to lack knowledge
regarding the new medical developments and hence face legal and ethical dilemmas. If we
take the example of three person IVF which is a recent development and has helped in
overcoming an individual’s inability to conceive the process requires the sperm and egg cell
to be fused outside the body and kept in vitro for specific periods of time now in this case the
right over the embryo belongs to the person who owns it but such ownerships are prohibited
there are several judgements and enactment like the Human Tissue Act 2004 UK, yet it
remains unclear as to what property rights living persons can claim over tissue separated from
their bodies. The human body parts are now not seen just a part of dignity but have a value
beyond that.

Hence the aim of the paper is to study and analyse the issue as to whether the current
framework of consent is satisfactory or whether it is preferable to extend the law of property
to parts of the human body especially to cells and human embryos therefore, the paper shall
apply the current meaning of consent in India and analyse the legality of the same. However,
it is first necessary to consider the existing legal framework regarding the status of the human
body in India. Therefore the objective of the paper is to study and analyse the arguments for
and against treating human body parts as properties. The paper shall analyse the evolution of
laws in relation to human tissue separated from living persons by analysing prominent
judicial decisions.

2. Property Rights Over Human Body

The applicability of theory of property rights over body parts has been discussed among the
medical fraternity recently as many in support of this theory feel that individual will have an
control not just at the beginning but throughout the treatment it’s called the advantage of
having a continuing control for example, in cases where blood is obtained from the individual
for donation purpose and later found to be used for testing which he never consented then in
such cases this can be the only way the individual could seek remedy