“THIS IS MY KIDNEY, I CAN DO WHAT I WANT WITH IT” – PROPERTY RIGHTS AND OWNERSHIP OF HUMAN ORGANS

Abstract

If I am not a slave, nobody else owns me and I therefore must own myself. This is but philosophical speculation and not the law. According to the legal view, not only does no one own me or my body parts, but neither do I. Legal conceptions of “property” do
not extend to self-ownership. A vacuum in law concerning the ownership of body parts exists and the only responses to questions concerning this type of ownership remain philosophical and obiter dicta in reported cases. This article explores property rights in human bodies and body parts in order to establish the position in law of excised human organs removed for the use in transplantation. It is necessary to highlight the historical progression in determining property rights in human body parts, but it should be borne in mind that the majority of laws and court decisions took place in an era when organ transplants were still in an experimental phase. For the sake of brevity foreign legislation and court judgments in only two common law countries will be scrutinised and compared to the current position in South Africa. The reasons why ownership in human organs are important will also be indicated.