Theft, Property Rights and the Human Body: A Scottish Perspective

Abstract

The notion of proprietal rights in human biological material is one which, until recently with the case of Yearworth v. North Bristol NHS Trust [2010] QB 1, the English courts have heavily resisted. Consequently it has been assumed by many legal commentators, and even some judges, that Scots law is also hostile to the notion. This article analyses the historical context of Scots law and avers that the law of Scotland is, in fact, quite different from that of England in this regard. The submission is substantiated by reference to historic legal cases, contemporary sociological and technological developments in Scotland and the inapplicability of the English legal tenets which prevent recognition of proprietal rights in the human body to this jurisdiction. Having argued in favour of the existence of proprietal rights in human biological material in Scotland, the article then asks, and answers, the question ‘in whom is the ownership right vested?’. In order to answer this question, and throughout the course of the article, relevant literature and case law are reviewed comprehensively. The benefits which may be enjoyed as a result of the recognition of such rights of property are also argued and debated and consequently the article concludes with a full summary of all relevant arguments and points of discussion.