Marking boundaries between the person and the thing: the law's dilemma over personhood vs property

Galloway, Kate (2007) Marking boundaries between the person and the thing: the law's dilemma over personhood vs property. In: presentations from the 2007 International Conference of the Law and Society Association of Australia and New Zealand, pp. 1-12. From: 2007 International Conference of the Law and Society Association of Australia and New Zealand: Markings - sites of analysis, discipline, interrogation, 29-30 November 2007, Melbourne, VIC, Australia. (Unpublished)

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Abstract

The New York Court of Appeals found in 2006 that 'Coke's classic edict [that a corpse has no value] is of more than historical interest: it has been a staple of the common law'. While this is true, it is also true that the common law has found a myriad of exceptions to the general proposition of no property in a corpse – resulting in a situation that is far from clear in an age where biological materials from the living and from the deceased do have value. The recent US decision of Colavito v New York Organ Donor Network Inc (2006) 8 N.Y.3d 43 maps the common law position and ultimately marks the biological matter of a deceased (in this case, a kidney) as 'person' rather than 'property'. As has so often happened in cases dealing with this issue however, the court was able to sidestep a fuller explanation of the boundary, on the basis that the plaintiff had no enforceable right to the kidney in question as it was in any event histo-incompatible with his antibodies. Whether this marking will remain sustainable in Australia in light of biotechnological advances is open to question. The dilemma over legal marking of 'personhood vs property' remains at the interface of social and philosophical norms.

Item ID: 21739
Item Type: Conference Item (Presentation)
Keywords: property; property law; human body;
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Date Deposited: 07 Aug 2012 05:35
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180124 Property Law (excl Intellectual Property Law) @ 50%
18 LAW AND LEGAL STUDIES > 1801 Law > 180199 Law not elsewhere classified @ 50%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified @ 100%
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