Property rights to our bodies and their products

• Author: James Edelman
• Position: Justice of the Federal Court of Australia (from 20 April 2015)
• Pages: 47-70

47

PROPERTY RIGHTS TO OUR BODIES AND THEIR

PRODUCTS

JAMES EDELMAN♣

This article, written for Peter Johnston, examines issues concerning

property rights to our bodies and their products. The questions of

principle involved in this area have attracted vast debate and discussion

amongst lawyers for two millenia. The underlying questions of legal

principle should not be complex. The principles established by the

Romans give clear guidance forhow these questions should be answered.

The difficulty is that the context in which the questions are asked can

involve hard policy choices.Legislative intervention still leaves

questions about how these choices are to be resolved.

PETER JOHNSTON

Peter Johnston was an academic and practising lawyer with a brilliantly creative

mind. A very senior judge in Western Australia once said of Peter that he saw

patterns in the law that weren't there. That was wrong; it is a misconception

which was a reason why Peter never received the formal recognition that

usually follows a brilliant, and established, legal practitioner. The error arose

because Peter saw patterns that almost no-one else saw. But they were there.

There were many occasions when a 'hopeless' legal argument devised by Peter

was ultimately successful. Indeed, the only occasion that I appeared against

Peter in court was when the solicitors on the opposing side to my client had a

fortuitous meeting with Peter at a cocktail party. They told him ofthe case that

my instructing solicitors had brought and oftheir difficulty in formulating a

knockdown defence. Without blinking, Peter told them that my client had a

problem with article 9 of the Bill of Rights 1688. There was a little head-

scratching.But he was right.1

My first meeting with Peter had been a decade before this case. Like

hundreds of other students in Perth, Peter taught me constitutional law at law

school. As was his way with many former students, he remained in regular

contact withme ever since. For two decades we met regularly whenever we

♣Justice of the Federal Court of Australia (from 20 April 2 015); Adjunct Professor of Law, U niversity

of Western Australia and University of Queensland; Conjoint Professor, University of New South

Wales. My thanks to Claudia Henfry for some of the research into cases discussed in this article.

1Gangemi & Anorv The Western Australian Farmers Federation (Inc)[2002] WASC 229.

48University of Western Australia Law ReviewVolume 39(2)

were in the same place. The conversation always moved rapidly to law. Peter

was a true polymath. He read everything he could get his hands upon. If it was

something written by a friend of his he would read every word. Some years

after I was appointed to the Supreme Court of Western Australia, I said to Peter,

only half-jokingly, that when I wrote a decision, I did it knowing that my

reading audience was usually three people. The legal representatives of the two

parties and him.

The genesis of this article was a hearing I conducted late in the evening on

Saturday 29 December 2012. Urgent orders were sought for extraction of

sperm from a recently deceased man. With only a minute for reflection I made

the orders. The next morning I recorded the immediate thoughts that had

formed the reasons for my decision the previous night. There were many very

difficult issues of legal principle involved in the question concerning property

rights to human tissue. It was also clear that the details of the legislation

dealing with some of the policy issues might not be fully understood. My brief

reasons considered some of these points.2

Very shortly after publication of this decision I met with Peter Johnston for

coffee. He had read the decision from start to finish. He told me of some of the

resonance that the case had with one that he heard when he sat on the Human

Rights and Equal Opportunity Commission concerning a sex discrimination

claim against Melbourne Hospital for refusing to supply in vitro fertilisation

services to an unmarried woman. We spoke of the issue which was the

foundation of the case: who owns our bodies and the products of our bodies.

Peter gently chided me, as he always did, for my reference in the case to Roman

law and Blackstone. He did so with a twinkle in his eye. He knew, and I knew,

that this was the part of the judgment which he had enjoyed the most. This

article builds upon that discussion we had many months ago about who owns

our bodies and their products. The thoughts which flowed from our discussion

were presented in a preliminary way at a conference at the University of

Western Australia.It is a great sadness for me to know that I will not receive

the usual email from Peter within days of publication online, pointing out, in a

gentle mocking tone, the aspects of legal history that he so loved and then

moving to the hard questions of underlying policy. But with Peter in the

forefront of my mind, I begin this article with the foundation of these questions

two millennia ago.

2Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3.