Компоненты человеческого тела как объекты гражданского права

Dmitry Kartashkov

doi:10.21638/spbu25.2021.403

Authors

Dmitry Kartashkov HSE University

DOI:

https://doi.org/10.21638/spbu25.2021.403

Abstract

The article deals with legal problems of the emergence and death of various categories of biomaterials, such as human organs, tissues, and cells, as well as cell lines derived from them. The author shows the main features of the proprietary legal nature of biomaterials from the point of view of the theory of civil law through the prism of the principles of materialism and economic value. The article also examines the emergence of the right to biomaterials according to two models: initial and derivative, which makes it possible to reveal the paradox of the human body as a source of biomaterials. The author shows that the human body is a point of partial coincidence of the object of law and the subject of law, which creates a locus of legal uncertainty. It is proposed to resolve the paradox either using the construction of the “natural environment” of the human body, or through the idea of organic self-ownership. The author makes a reasoned choice in favor of the latter. The article also provides a classification of various biomaterials from the point of view of traditional proprietary characteristics: movability, divisibility, substitutability, etc. The very possibility to talk about biomaterials in this way illustrates in detail their proprietary legal nature. Then the author builds a model of civil relations between the participants in the organ transplant process through the classic triad of the owner’s rights: ownership, usage and disposal. The author, relying on the theory of the transactional nature of informed consent, hypothesizes that the donor has an unnamed property right: the right to destroy the seized biomaterial. Such a right, contrary to the prevailing understanding, does not arise from informed consent as such, but follows the property, since it does not depend on the change in the owner of the biomaterial. The author shows that the totality of the features set out in the article: materiality, the possibility of proprietary legal classification and the presence of derivative property rights following the biomaterial, strengthens the view of biomaterials as objects of property rights.

Keywords:

property law, human organs and tissues, biomaterial, transplantation, self-ownership, informed consent

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References

Aiusheeva, Irina Z. 2019. Problems of legal regulation of contractual relations in the production of bioprinted food organs. Lex russica 6: 92–99. (In Russian)

Azoulay, Daniel. 2001. Split-liver transplantation for two adult recipients: Feasibility and long-term outcomes. Annals of Surgery 233 (4): 565–574.

Babadzhanov, Isrofil Kh. 2016. Human, his body: problems of property. Iuridicheskaia nauka: istoriia i sovremennost’ 2: 170–177. (In Russian)

Bolychevskaia, Elena S. 2015. Natural obligations in civil law. PhD Diss. in Law. Moscow, Moskovskii gosudarstvennyi iuridicheskii universitet imeni O. E. Kutafina (MGIuA). (In Russian)

Chernus’, Nadezhda Iu., Tsikhotskii, Anatoly V. 2019. Civil law regime of human biological material. Rossiiskii iuridicheskii zhurnal 1: 81–87. (In Russian)

Dozhdev. Dmitry V. 1996. Roman private law. Moscow, INFRA-M NORMA Publ. (In Russian)

Gitter, David. M. 2004. Ownership of human tissue: a proposal for Federal recognition of human research participants’ property rights in their biological material. Washington & Lee Law Review 61: 257–344.

Goloviznin, Aleksey V. 2018. Turnover of objects of civil rights. Pravo i ekonomika 4: 21–26. (In Russian)

Haider, Monica, Frehse, Rob. 2019. A New Jersey hospital admits giving a kidney transplant to the wrong person. CNN. Available at: https://edition.cnn.com/2019/11/26/us/nj-hospital-kidneytransplant-wrong-person/index.html (accessed: 21.05.2020).

Kartashkov, Dmitry V. 2020. Bioethical analysis of market model of distribution of donor kidneys. Meditsinskoe pravo: teoriia i praktika 5 (2): 149–153. (In Russian)

Kartashkov, Dmitry V. 2020. Legal remedies for patients whose tissues are removed to create cell lines (as exemplified by the case Moore v. Regents of the University of California). Zakon 6: 92–99. (In Russian)

Korkunov, Nikolai M. 1897. Lectures on the general theory of law. St Petersburg, Izdatel’stvo iuridicheskogo knizhnogo magazina N. K. Martynova Publ. (In Russian)

Kovalev, Mitrofan I. 1995. Legal problems of modern genetics. Gosudarstvo i pravo 6: 19–25. (In Russian)

Krasnovskii, Grigoriy N., Ivanov, Dmitry N. 1993. Topical issues of legal regulation of organ and tissue transplantation in the Russian Federation. Vestnik Moskovskogo universiteta 5: 50–62. (In Russian)

Maenosono, Ryoichi, Tullius, Stefan G. 2019. Saving lives by saving kidneys for transplant. JAMA Internal Medicine 179 (10): 1374–1375.

Maleina, Marina N. 2000. Personal non-property rights of citizens: concept, implementation, protection. Moscow, MZ Press Publ. (In Russian)

Myzrov, Sergei N., Nagornyi, Viktor A. 2014. Revisiting the proprietary status of human’s organs and tissues: differential approach to solving this problem. Meditsinskoe pravo 3: 35–40. (In Russian)

Osipova, Ludmila V., Iudin, Egor V. 2016. Transplantation of human organs (tissues) in the Russian Federation: problems of legal regulation. Meditsinskoe pravo 3: 34–38. (In Russian)

Ostanina, Elena A. 2019. The right to your body: Orders regarding organs, tissues, cells and embryos from the perspective of civil law. Vestnik ekonomicheskogo pravosudiia Rossiiskoi Federatsii 8: 156–195. (In Russian)

Rao, Radhika. 2016. Informed consent, body property, and self-sovereignty. The Journal of Law, Medicine and Ethics 44: 437–444.

Serebriakova, Alla A., Arzamaskin, Mikhail M., Variushin, Mikhail S. 2011. State legal regulation of the use of human organs and tissues for transplantation as special objects of civil law (comparative study). Vlast’ 8: 155–157. (In Russian)

Sharkovskaia, Evgeniia A. 2019. The place of biomedical cellular products in the system of civil rights objects. Rossiiskaia iustitsiia 7: 63–65. (In Russian)

Shroff, Samdha, Navin, Samrath. 2019–2020. Human chimerism — man with donor’s DNA. Indian Transplant Newsletter 19 (58). Available at: https://www.itnnews.co.in/indian-transplant-newsletter/issue58/Human-Chimerism-Man-with-Donors-DNA-1004.htm (accessed: 26.04.2022).

Sinitsyn, Sergei A. 2016. Thing as an object of civil rights: Possible and proper criteria for identification. Zakonodatel’stvo i ekonomika 11: 7–17. (In Russian)

Sklovskii, Konstantin I. 2010. Property in civil law. Moscow, Statut Publ. (In Russian)

Sklovskii, Konstantin I., Kostko, Vladislav S. 2018. About the concept of a thing. Money. The property. Vestnik ekonomicheskogo pravosudiia Rossiiskoi Federatsii 7: 115–143. (In Russian)

Starovoitova, Olga E. 2006. The legal mechanism for the implementation and protection of somatic human and civil rights in the Russian Federation: Historical, legal and theoretical analysis. Dr. Sci. Diss. in Law. St Petersburg, Sankt-Peterburgskii institut MVD Rossii. (In Russian)

Sukhanov, Evgenii A. 2017. Property law. Scientific and educational essay. Moscow, Statut Publ. (In Russian)

Taylor, Robert S. 2005. Self-ownership and the limits of libertarianism. Social Theory and Practice 4: 465–482.

Townsley, Michael L. 2014–2015. Is there any body out there? A call for a new body of law to protect individual ownership interests in tissue samples used in medical research. Washburn Law Journal 54: 683–724.

Vasil’ev, Gennadij S. 2018. Human biomaterial as an object of law. Pravovedenie 62 (2): 308–361. (In Russian)