Meredith M. Render, the Law of the Body

• Publication year: 2013

THE LAW OF THE BODY

Meredith M. Render*

ABSTRACT

This Article posits that a “law of the body” is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot—at any point in our lives—“own” our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property. This Article supplies that piece of this byzantine puzzle. Specifically, the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body.

Moreover, this Article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that they are predicated on a series of misunderstandings. These misunderstandings generally fall into three categories: misunderstandings about the nature of “property”; conceptual misunderstandings about bodies and selves and the capacity to own oneself; and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body. Once these misapprehensions are clarified, the intellectual path will be cleared for a “law of the body” to emerge, and legislators, courts, and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends.

* Associate Professor of Law at the University of Alabama School of Law. The author would like to thank Dean Randall and the Alabama Law School Foundation for their generous support of this research. I am also grateful to Guido Calabresi, Eric Kades, Mark Fenster, Jonathan Cardi, Ronald Krotoszynski, Eric Muller, Mark Seidenfeld, Lori Ringhand, Tom Arthur, Adam Feibelman, Michael Pardo, Bill Brewbaker, Christopher Essert, Heather Elliot, Fredrick Vars, and the participants in the 2011–2012 Southeast Law Schools Junior Faculty Conference for helpful suggestions and comments on earlier drafts of this Article. Finally, I am grateful to Sarah Sternlieb and Jared Buszin for outstanding editorial work. All mistakes are my own.

INTRODUCTION 550

1. THE BODY AS PROPERTY 557

   1. The In Rem Theory of Property 557

   2. The In Rem Body 568

      1. The Legal Construction of In Rem Body Rights 568

      2. The Conventional Construction of the In Rem Body 575

   3. In Rem Body Rights 578

2. CONCEPTUAL CLARITY: BODIES AND PERSONS 582

   1. The Subject–Object Problem 583

   2. Disaggregating Persons and Bodies 586

   3. Ownership and the Thirteenth Amendment 589

3. CONSEQUENTIALIST CLARITY: ON COMMODIFICATION 594

   1. The Conflation of “Property” and “Commodity” 597

   2. The Consequences of a Law of the Body 602

CONCLUSION 604

INTRODUCTION

People have begun to sell their skin. This is not meant euphemistically, as a pornographer may be said to sell “skin.”1 Instead, people have begun to sell their actual skin tissue as advertising space.2 In these arrangements, the seller agrees to obtain a tattoo of a company’s logo or other advertising mark. The tattoos are temporarily (or sometimes permanently) affixed to the seller’s arm or back—or, occasionally, forehead—and serve as novel advertising for the buyer. Through this transaction the seller’s body is transformed into a

1. Of course, in this less literal sense, “skin” has long been a commodity. Sex trade consumers have purchased the temporary right (and in our darkest corners, the permanent right) to touch or look at human bodies since time immemorial. Within this euphemistic “skin” is catalogued a host of manners in which the sexual use of the human body has been commercially exchanged. For a provocative consideration of these types of commodification of the human body, see generally MARTHA C. NUSSBAUM, SEX & SOCIAL JUSTICE 276–85 (1999), which argues that taking money in exchange for sexual services is more analogous to other types of work than our initial intuitions may reveal.

2. This practice, sometimes referred to as “human billboarding,” has been growing in popularity since the

   turn of the millennium. The practice made headlines in 2001 when a casino paid a boxer $100,000 to wear a temporary tattoo on his back during a championship fight. See Albert Chen, Tattoo You, SPORTS ILLUSTRATED, Mar. 18, 2002, at 26. Human billboards were in the news again in 2003 when a web-hosting company paid a twenty-two-year-old $7,000 to permanently tattoo the company’s logo on the back of his head. Eric Gwinn, An Ad That’s a Head of the Game, BALT. SUN (May 02, 2003), http://articles.baltimoresun.com/2003-05- 02/features/0305020175_1_jim-nelson-faulkner-tattoo. Similarly, in 2005, an entrepreneurial, aspiring college student named Andrew Fischer auctioned his forehead on eBay amid much press fanfare. Man Auctions Ad Space on Forehead, BBC NEWS, http://news.bbc.co.uk/2/hi/technology/4161413.stm (last updated Jan. 10, 2005).

   commercial space, and, more remarkably, it adopts an attribute once thought to be antithetical to a living and intact human body: the seller’s body assumes an aspect of alienability. A third party now enjoys a property-like interest in an aspect of the seller’s living human body.3

   
   

   In executing such an agreement, the seller’s body becomes a commodity— an alienable economic good.4 But is it accurate to say that the seller owned that which he sold? How should we characterize the legal relationship that the seller has with his own living body?

   
   

   To illustrate the complexities inherent in this question, consider a second way in which skin has become a commodity. Disembodied human skin is used by biotech companies to create an array of products, ranging from life-saving skin grafts to cosmetic lip fillers and anti-aging creams.5 The skin used in these

   products is sold to biotech companies by tissue procurement agencies and hospitals.6 Agencies obtain skin tissue from donated cadavers.7 Hospitals sell skin tissue that would otherwise be discarded from surgical procedures—for example, the amputated foreskins of circumcised babies.8 Biotech companies purchase the tissue and convert it into useful and profitable products.9 A chain of skin ownership stretches from the procurement agency to the biotech company to the patient who receives a skin graft. But what of the person whose body originally produced the skin tissue? Did the originator of the skin ever “own” it in the same sense that the biotech company owned it?

   
   

3. Some may conceive of the interest that the buyer-company enjoys in the seller’s skin as more akin to a contract interest: the seller has an obligation to perform (wear the tattoo) or face liability for breach. However, websites that tout the practice of human billboarding and serve to connect buyers and sellers tend to describe the interest created as a lease. See, e.g., LEASE YOUR BODY, www.leaseyourbody.com (last visited Jan. 26, 2013).

4. This at least applies to the portion of the seller’s body that is occupied by the advertisement. The seller

   is presumably still able to use his living and intact body in much the same way that he was able to without the tattoo.

5. See Kerry Howley, Big Business in Body Parts, L.A. TIMES, Mar. 6, 2007, at A17; Coco Ballantyne, A

   Cut Above the Rest?: Wrinkle Treatment Uses Babies’ Foreskins, SCI. AM. (Feb. 12, 2009), http://www. scientificamerican.com/article.cfm?id=a-cut-above-the-rest-wrin (discussing human foreskins used in anti- wrinkle creams).

6. Howley, supra note 5, at A17.

7. Id.

8. See David Solomon, Informed Consent for Routine Infant Circumcision: A Proposal, 52 N.Y.L. SCH.

   L. REV. 215, 220 (2007–2008) (“[A]mputated foreskins are transferred to burn units to make skin bandages for burn victims. . . . [F]oreskins are also sold to pharmaceutical and cosmetic companies (for a profit) for a wide range of uses, including the testing of cosmetics, the creation of artificial skin, and the manufacture of the widely used cancer drug Interferon.” (footnote omitted)).

9. See id.

   Advancements in biotechnology have complicated this question of human body ownership by producing an extraordinary array of uses for the human body.10 Some of these advancements involve the use of discarded, donated, or disembodied body parts, as with the example of skin above. Others involve the whole and living body, as with, for example, surrogacy.11 Still others involve knowledge of the workings of the human body, as with the discovery and patenting of genes.12 And some biotechnology involves the creation of new humans, as with assisted reproduction such as in vitro fertilization.

   
   

   So how has our legal scheme responded to the increasing alienability of the human body’s capacities? Not surprisingly, lawmakers have addressed the issue in a patchwork manner, fashioning idiosyncratic rules as novel legal questions arise, while failing to satisfactorily address the deeper and more difficult autonomy-versus-distributive-justice tensions created by body

   alienability.13 This is not an unusual legal response to a technological sea

   change—the Industrial Revolution and the development of the Internet come to mind.14 In the wake of a technological revolution, it takes time for our legal norms to first comprehend and then meaningfully order our actual practices. For example, when the Industrial Revolution transformed human labor practices, courts and other lawmakers first applied traditional contract

   principles to the controversies that followed, and when traditional contract principles failed to address the deeper problems born of mass production, the

   
   

10. ROHAN HARDCASTLE, LAW AND THE HUMAN BODY: PROPERTY RIGHTS, OWNERSHIP AND CONTROL 3–

7 (2007) (identifying many of the uses that biotechnology has...