William Blackstone’s Commentaries on the Laws of England bifurcated the physical universe into persons and property. In Blackstone’s description of English law, there were categories of persons (just as there were categories of property)—freemen, slaves, and wives “protected” by coverture. But each of those categories of persons consisted of whole, living natural persons. Blackstone recited the prevailing scientific and theological view of the day, that life began upon the “quickening” of “an infant … in the mother’s womb.” Blackstone similarly recited the prevailing legal view of when personhood ended—upon death. But while Blackstone clearly set forth the parameters of personhood, he failed to acknowledge that the borders of “property” did not neatly correspond, leaving the possibility of physical objects that were neither persons nor property.
This gap in English and American common law first caused problems when medical schools began to teach through anatomical study. Medical students needed cadavers to dissect, but prevailing Christian belief in literal resurrection discouraged voluntary donation. As a result, a market in fresh cadavers, rudely disinterred from their graves, emerged. Although these corpses had a market value, English and American authorities were frustrated that grave robbers could not be prosecuted for conversion and related crimes because of the clear common law doctrine, articulated by Blackstone, that human remains are not property.
Medical and scientific advances in the past century have expanded our understanding of the common law gap between persons and property and challenged us to reassess those boundaries, particularly with respect to human tissue with value for transplantation, therapy, or research. Professor Browne Lewis, The Leon and Gloria Plevin Professor of Law at Cleveland-Marshall College of Law, adds to this emerging niche of scholarship at the intersection of property law and bioethics by analyzing the legal status of frozen human eggs.
Lewis notes that the legal status of biological materials is important because “the ability of people to recover damages may be impacted by whether they have any legally recognized property interests” in them. (P. 651.) She explains that in the event of a dispute between a fertility clinic and a customer, the “owner” of the frozen eggs may receive damages for a conversion or bailment claim only if the eggs are legally protected property.
One of the most provocative and interesting sections of Lewis’ article discusses surrogacy contracts and what the nature of those transactions suggests about the legal status of “babies conceived using assisted reproductive technology.” (P. 652.) Lewis argues that these children are “treated like market place goods.” (Id.)
Lewis cites several cases where surrogacy agreements were analyzed in accordance with contract law principles rather than family law. In a 1993 California case, Lewis argues, “the court enforced the terms of the surrogacy contract in order to give the [parties procuring the surrogacy services] the benefit of their bargain,” and in so doing “the court appeared to treat the baby like any other subject of a contract.” (P. 654.)
Lewis cites these cases as evidence that “society has accepted babies being treated like property.” (P. 656.) If babies are essentially treated as property, Lewis implicitly argues, surely frozen eggs should be treated as such. These arguments, uncomfortable as they may be, are undoubtedly worthy of engagement.
When I first read Lewis’ article, I was disturbed by her casual use of the concept of “ownership.” She asserts, for example, that parents have “an ownership interest” in their children “against everyone but the other parent.” (P. 686.) She also asserts that “when eggs are inside of a woman’s body, it seems clear that she has an ownership interest in them.” (P. 666.)
In fact, though, at least since Blackstone’s time, the common law has treated human tissue attached to or within the human body as part of the person itself, and once separated from the body as part of the gray space between persons and property. There is certainly no clear and established legal precedent holding that human tissue is ever property that can be owned, even when part of one’s own body.
But these statements by Lewis—a respected bioethics scholar who is obviously quite familiar with the cases and relevant scholarship—are useful because they reveal the disconnect and tension between social and legal conceptions of personhood and ownership. They also illustrate the problems courts face in trying to navigate in the void between persons and property.
For example, Lewis discusses the landmark case of Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990). In that case, the Supreme Court of California held that Moore could not assert a conversion claim against the doctor that removed and retained his rare and valuable cells because he had no expectation in exerting control over those cells after they were removed from his body.
Significantly, though, the court skillfully avoided stating that Moore “owned” his cells while they were still in his body. The Court also explicitly dodged the question of whether human biological material could never be considered personal property. The passionate dissent of Justice Arabian perhaps reveals why the majority thought it wise to sidestep those questions:
Plaintiff has asked us to recognize and enforce a right to sell one’s own body tissue for profit. He entreats us to regard the human vessel—the single most venerated and protected subject in any civilized society—as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much.
Moore, 51 Cal. 3d at 148.
There are arguments in favor of treating biological materials, like frozen eggs, like property. There are also arguments against. The common law will obviously be of little help in resolving this quagmire. Lewis’ article gives the reader a useful framework for thinking about these sensitive issues at the intersection of bioethics and law, while also offering some provocative insights for this ongoing debate.