Table of Contents
Organ donation versus organ trafficking
The principle of ownership in property law
The human body: "A property object"?
If the body is property- who owns it?
Another viewpoint: Immanuel Kant
Organ donation in Germany and in Spain: Opt-in or opt-out system?
The UK- A case example
European Union and International standards
According to John Locke “Every man has a property in his own person”. Whether this theory can be regarded as being correct is going to be answered in this paper, as it deals with organ donation and its relation to the field of property law, especially that of new objects of property law. Due to the fact that there is an increasing development of biomedical research and technology, the human body is treated differently. Beside the many ethnical concerns, organ donation can be illuminated from a legal point of view, namely at what point in time property law plays a role and how far it can influence organ donation itself.
There is a growing need to determine whether and under which circumstances we own our organs and how we can legally transfer them to another proprietor. It cannot be denied that property law is an important topic with regard to organ donation, because beside other new objects in the field of property law, such as emission rights or virtual property, it does not only seem to be interesting but also necessary to determine whether we own our human body and its organs and how they can be transferred to another person in a legal way. Even though human organs differ from the usual objects of property law, one can principally establish the same questions as with regard to other objects of that topic, for example how ownership can be transferred. But one should keep in mind that because the human body is involved it is a highly sensitive and ethical issue.
Due to the fact that the main focus lies on property law and especially on the concept of ownership the ethical issues will not be addressed extensively, because this would be beyond the scope of this paper. Corollary, there is a central research question, namely: Can the transfer of ownership of organs within different European Union countries take place, and under which circumstances can it take place? I use a deductive reasoning method, meaning that I start with the more general issue and principles of ownership itself, in order to be able to answer the more specific research question in the end.
It seems to be interesting to find out, how the basic concept of ownership can be applied to such a specific topic as the human body and its organs.
To be able to answer my research question, I first of all explain the distinction between organ donation and organ trafficking, in order to avoid any confusion later on. Secondly the principle of ownership is shortly explained, thereby focusing on the important and comprehensive nature of the right of ownership in the property law context.
In the next step the human body as a property object is discussed. It is touched upon the different practices of acquisition of organs, the implications of the commercialization of the human body and a distinction between permanent loss and non-permanent loss of tissue is made, which leads to the distinction of the whole, unified human body as such and only parts of it. In this context the opinion of the author Russell Scott is discussed. According to his point of view, the human body may be regarded as property, justified by the fact that organ donation benefits society.
It follows the question who owns the human body, considered that the human body is a form of property. This question leads to the theories of John Locke and the concept of self-ownership, followed by the viewpoint of Immanuel Kant, denying property right in the own body, because of the duty of self-conversation.
After having discussed different theoretical viewpoints, the approaches towards organ donation of different countries are examined. Germany and Spain are taken as examples, because while Germany follows an opt-in approach in relation to organ donation, Spain follows the contrary approach of an opt-out system. Poland is also tapped upon, following the same approach as Spain, but with different consequences. Furthermore the reform plans in Germany are briefly discussed.
Since the Human Tissue Act 2004 made an interesting distinction between living and dead organ donation, which is illustrated in a case example, namely the Ashworth Affair 2008 the UK is also dealt with.
Lastly, before the conclusion is drawn, the European Union and international standards are considered. In this section, not only the views taken by international organisations such as the UNO and the WHO are presented, but also the Directive 2010/45/EU on standards of quality and safety of human organs intended for transplantation is introduced.
The conclusion provides for a rough recap of what has been debated and tries to give an answer to the research question, followed by my own opinion.
Organ donation versus organ trafficking
Especially to understand the following considerations in this paper, it is of significance to distinguish between organ trafficking and organ donation. Organ donation describes the process were healthy organs from one person are transferred into another person´s body. Most often these organs are transferred from dead persons, but with regard to specific organs it is also possible that they are transferred from a person who is still alive. The demand for viable organs exceeds supply. The fact that there is more demand than supply is also of importance with regard to organ trafficking, which will be defined below. Due to the shortage of organs, money is offered to people in order to sell their kidneys or other organs. This problem affects poor people in particular, who are often willing to sell their kidneys for a very marginal amount of money, because they are dependent on this small amount. Often they do not get any money at all, because their kidneys are simply stolen. One way to define organ trafficking is the definition used in the UN Trafficking Protocol, stating ‘that trafficking for organs occurs where a third party recruits, transports, transfers, harbors or receives a person, using threats or use of force, coercion, abduction, fraud, deception, or abuse of authority or a position of vulnerability for the purpose of removing that person´s organ(s).’ Organ trafficking most often happens with regard to kidneys, because the removal of almost all other organs would require killing the person and this occurs quite infrequently.
The principle of ownership in property law
As this paper deals with the question whether a person owns his or hers body and whether and how this ownership can be transferred to another person in a legal way, it is of importance to address the concept of ownership in general. The concept of ownership is the most fundamental concept in property law. Ownership should be regarded as the most comprehensive property right regarding objects possible. One says that it is “inviolable et sacré”. Because each person has a right to individual freedom, ownership is a right belonging to each individual.
All other property rights give their holder lesser possibilities than ownership and these rights are therefore seen as burdening the right of ownership. Generally the concept of ownership can be seen as a basis from which property law itself derived and as the strongest right a person can have.
Due to the fact that the concept of ownership is of this great importance in the field of property law, as explained above, it is especially important to examine whether this basic concept can be applied in the unusual area of the human body.
 Courtney S. Campbell; ‘Body, Self, and the Property Paradigm’. The Hastings Center Report 22(5), 1992, p. 39.
 The Gift of a Lifetime, available at:
http://www.organtransplants.org/, last retrieved on: 25.05.2012.
 Elaine Pearson; ‘Coercion in the Kidney Trade? A background study on trafficking in human organs worldwide’. Deutsche Gesellschaft für technische Zusammenarbeit, 2004, p. 9, available at: http://www.gtz.de/de/dokumente/en-organ-trafficking-2004.pdf, last retrieved on: 29.05.2012.
 Pearson 2004, p. 9
 Prof. Sief van Erp; ‘From “classical“ to modern European property law’ . Maastricht Faculty of Law 2009, p. 10.
 Van Erp 2009, p. 10.