Components of the Human Body as Objects of Civil Law

Abstract

The article deals with legal problems of the emergence and death of various categories of biomaterials, such as human organs, tissues, and cells, as well as cell lines derived from them. The author shows the main features of the proprietary legal nature of biomaterials from the point of view of the theory of civil law through the prism of the principles of materialism and economic value. The article also examines the emergence of the right to biomaterials according to two models: initial and derivative, which makes it possible to reveal the paradox of the human body as a source of biomaterials. The author shows that the human body is a point of partial coincidence of the object of law and the subject of law, which creates a locus of legal uncertainty. It is proposed to resolve the paradox either using the construction of the “natural environment” of the human body, or through the idea of organic self-ownership. The author makes a reasoned choice in favor of the latter. The article also provides a classification of various biomaterials from the point of view of traditional proprietary characteristics: movability, divisibility, substitutability, etc. The very possibility to talk about biomaterials in this way illustrates in detail their proprietary legal nature. Then the author builds a model of civil relations between the participants in the organ transplant process through the classic triad of the owner’s rights: ownership, usage and disposal. The author, relying on the theory of the transactional nature of informed consent, hypothesizes that the donor has an unnamed property right: the right to destroy the seized biomaterial. Such a right, contrary to the prevailing understanding, does not arise from informed consent as such, but follows the property, since it does not depend on the change in the owner of the biomaterial. The author shows that the totality of the features set out in the article: materiality, the possibility of proprietary legal classification and the presence of derivative property rights following the biomaterial, strengthens the view of biomaterials as objects of property rights.