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This chapter aims to identify the particular structure of rights and duties that ought to apply to the use and storage of bodily material. This requires an assessment of whether the rights that arise in items of bodily material are conceptually consistent with property rights. It is argued here that a right in bodily material that is in-itself is conceptually consistent with property rights and therefore such rights ought to obtain the legal structure of property rights. However, rights in bodily material that is for-itself or for-others are exclusive but non-contingent rights. In addition, insofar as these items of bodily material are self-ascribed, such rights are ambiguous. Rights in bodily material that is for-itself or for-others therefore ought to adopt a structure that is akin to the common law right to privacy. Hence, the law ought to develop a dualist approach to the legal status of bodily material.

This chapter aims to identify when, and upon what basis, a person ought to be able to possess, control, or use bodily material. Three predominant explanations—the prior embodiment principle, the ‘work or skill rule’, and ‘the dual nexus of relations between will and object’—are assessed and then located in the law. A further explanation is then outlined that provides a tripartite account of the body and bodily material (as being for-itself, for-others, or in-itself). This further explanation invites a methodological contrast between a first-person and a third-person perspective on the body and bodily material. This contrast between perspectives is then used to explain the tension between the individual interests that we have in our own body and bodily material (or the body of another person) and the societal interest in allocating material resources to address healthcare needs.

This chapter assesses whether a person ought to be able to profit from the relinquishment or transfer of bodily material. Three arguments are advanced. First, it is not possible to justify the right to profit upon a pre-social basis of ownership, as there is a logical distinction between the content of the right and the pre-social attributes and characteristics of the person. Second, it may be possible to justify the right to profit on the social basis that the exercise of the right will lead to an increase in the availability of bodily material, provided that there is a value equivalence between the value of the bodily material and the value of the financial benefit. Third, the increased availability of bodily material is likely to be the result of financial pressures on progenitors, and such pressure may denigrate the value of the body and vitiate their ‘self-ascription’.

Through the analysis of the main legal disputes over the use and storage of bodily material this chapter aims to formulate the initial analytical distinctions required to assess the appropriate legal status of bodily material. This chapter demonstrates how ‘ownership’, as understood as a bundle of entitlements in an object or resource, is not a legal concept. As such, ownership is analytically distinct from ‘property’, since property concerns a particular legal relationship between the rights-holder and the duty-bearer with regards to an object or resource. This chapter then suggests that viewing the law in terms of ‘incidents of ownership’ demonstrates the variation of functional relationships within the ownership bundle. This variation is relevant to the task of justifying the ownership. An initial distinction between different ways of justifying ownership is then discussed.

The introduction sets out the the rule that there is ‘no property in the human body’ and the growth of exceptions to it. The aim of the book, to determine the appropriate legal status of bodily material, is then explained, and its three inquiries introduced. The first inquiry concerns the distinction between ownership as a functional relationship between a person and thing, and the legal relationships between a rights-holder and duty-bearer that are constructed to protect ownership relationships, the second inquiry concerns an ambiguity in the body, and the third inquiry concerns a distinction between different sets, or spheres, of value. It then explains how individual chapters will address these questions, before setting out the parameters of the inquiry.

This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the use and storage of bodily material. Since property rights are exclusive rights, property rights are exercisable against an open-set of persons, actionable per se, and impose duties of non-interference. This set of features can explain why there is pressure on the common law to recognize property rights in bodily material: to pull the entitlements in bodily material behind an ‘exclusionary boundary’. Additionally, since property rights are also rights that can exist independently of the particular rights-holder, they impose corrective remedial duties and are transferable. This set of features can begin to explain why there are limits to the appropriate application of property law: not all rights regarding an object or resource can exist independently of the rights-holder.

The conclusion gives the history of the 'no property rule' relating to the human body and its parts, and the implications thereof. The inadequacies of the law in providing protection to entitlements to bodily material meant that exceptions have emerged. These exceptions incorporated both Lockean and Hegelian reasoning. The result is a property law that is unusually ambiguous. Finally, the conclusion sets out the aim of the book's recommendations: to attempt to resist the coupling of the exclusionary boundary with contingency rights in the law that applies to the use and storage of bodily material.