EIENDOM IN DIE MENSLIKE LIGGAAM: KLOP FRANKENSTEIN AAN DIE VOORDEUR?

Abstract

The supply of body parts is becoming increasingly important to biomedical research. As medical technology continues unabated, the demand for organs and human tissue will increase. In South Africa the human body has traditionally been views as res extra
commercium and free commerce in parts of the body has always been regarded as contra bonos mores. These rules were adopted in an era that could not foresee the possibilities brought to us by medical science. In this article, the protection and recognition given to rights in a living person, a corpse and human tissue are examined. The Human Tissue Act 65 of 1983 provides for the donation and making available of human bodies for educational and research purposes. It also provides for the removal of tissue, blood and gametes from the bodies of living persons. Any person, who acquires the body of a deceased person or any tissue in terms of the Act, acquires “exclusive rights” in respect thereof. The Act treats human tissue sources as gifts within a donation paradigm. The acceptability of this paradigm has been criticized by the individual whose tissue or organs are used, which sometimes results in
substantial financial rewards for researchers and pharmaceutical and biotechnology companies. Unfortunately the individual seldom shares in the ensuing profits. Many are in favour of a market approach, but it is feared to be incompatable with people’s moral and
religious beliefs to refer to body parts as “property”. In this article alternative approaches are considered. It is argued that a more pragmatic approach should be adopted that represents a middle course between a donation paradigm and a market approach. However, any approach to protect rights in the human body must be examined within the context of the Constitution.