Abstract:
Organ transplantation and biotechnological research depend on the availability of body parts, which necessitates the willing involvement of the public. The rapid development of biotechnology has led to a search for an adequate decision-making framework for the acquisition, retention and utilisation of body parts. It has also lead to disquiet about the commercialisation of research with the source being the only participant who is unable to benefit financially. In developing such a framework it is necessary to conceptualise the nature of the interest that individuals have in their bodies.
The principle of autonomy may form a basis for structuring decision-making and weighing conflicting principles. As a society we value autonomy in the sense that a competent adult may make decisions about his or her own health care. The concept is that of an individual separated from others by a wall of rights. This may be of assistance as a basis for formulating competing rights, but this must then be mediated with reference to other principles. In this context this thesis applies the concepts of property interests to the human body.
The purpose of this research is to consider selected bioethical issues in an attempt to formulate a principled approach to issues of consent and control over the body and its component parts. It argues that a living person should have a property interest in excised body parts during life. There should also be a property interest in the cadaver that arises at the point of death, which can be passed to the deceased's personal representative, who would be required to deal with the cadaver in accord with the previous instructions of the deceased. However, it does not argue that there are property interests in entire living persons.
It does not suggest that property alone is adequate to resolve the issues, but that it should operate alongside existing concepts such as autonomy, informed consent and privacy. It proposes draft legislation to illustrate the operation of the suggested medico-legal framework.
It recognises that any framework should be respectful of Maori cultural values, in light of the special position of Maori as tangata whenua, as expressed in the Treaty of Waitangi. It argues that the framework allows Maori the freedom to choose collective or individualistic decision-making, in recognition of the diversity of values within the Maori population.
In addition, it considers areas where public policy might determine that the free disposition of this property interest should be restricted to protect vulnerable persons, such as incompetent persons and living organ donors.
