Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material

Abstract

For over a century the Australian High Court’s decision in Doodeward v Spence has dominated questions of property rights in the human body. Beginning with the Supreme Court of Western Australia’s decision in Roche v Douglas in 2000, however, Australian courts have developed an alternative ‘guided discretion’ approach to finding property rights in human biological material. This approach provides a normative framework for judges deciding the property question. The existence of two legal bases that answer the same legal question within the Australian common law is unnecessary and undesirable. This article examines the case law applying the more recent guided discretion approach and identifies its three essential features. It then presents four arguments as to why Doodeward should be superseded by the guided discretion approach in questions of property rights in human biological material.