Property in recyclable artificial implants

This article discusses property rights in recyclable artificial implants such as pacemakers. These implants can remain useful and valuable after the death of the first user, but it is not clear who owns the devices when they are removed. The article explains how property rights are transferred consensually and by the operation of law. It then applies these principles to the problem of recyclable implants and argues that the central question is whether the device in any given case accedes to its host human body. If it does not, then on removal the device is owned by the same person who owned it when it was first implanted: this may be the first user or their estate, or a hospital, or even a manufacturer. On the other hand, if the device does accede to the host body, then it ceases to exist as an independent object. The thing into which it has merged, a living human body, cannot be the subject of property rights. This means that any earlier rights in the implant are lost, and would not revive on removal. Instead, new property rights may attach to an explanted device.

Stepping back from the property line: a perspective from regulatory theory

There are multiple populations affected by issues associated with the excision and use of human tissue, each with different interests. There are also multiple subject matters for regulation; multiple regulatory goals that inform the system; and multiple strategies that may contribute to the attainment of those goals. This article outlines a range of regulatory mechanisms and suggests that a property regime is only one method of regulation in this area. Others may need to be considered to take account of the interests of all who may be affected,

Property or not property? The spectrum of approaches to regulating the use of human bodily material

This article presents the case for taking a property approach in regulating the use of human bodily material. It examines the current debates on the issue and outlines the various perspectives, ranging from the anti-property stance, through the spectrum of positions on modified and semi-proprietary approaches, through to the "full-blooded" property approach advocated by some commentators. It elucidates why those approaches that allow some proprietary aspects into regulation are to be preferred.

Relational bodies

This article argues that debates over the legal status of bodies reveal a much deeper dispute over the nature of the self. In these discussions lawyers and ethicists have much to learn from a more profound understanding of the biological nature of the body. Far from being a static entity, the body is constantly recreating itself. It contains parts that are organisms in their own right. Bodies are dependent upon other bodies and the external environment for survival. The complex biological picture reflects a philosophical truth that bodies are interdependent and "leaky". We should not, therefore, expect a single legal regime, such as property to capture the biological and ethical values that are at stake in relation to every part of the body. A more complex statutory regime is required to recognise the complexity of the interests in, and nature of, different body parts.

Making something into nothing: reforming the "no property" rule for human tissue

Advances in medical science have redefined the use and worth of once useless human tissue. The Australian common law has not kept pace with these advances, perpetuating the "no property" rule in human tissue. This has led to a plethora of legal problems surrounding who owns human tissue. This article examines the Australian common law position in relation to regenerative tissue. It then compares it with approaches in the United States and the United Kingdom. With a focus on absurd or unethical outcomes in these jurisdictions, it illustrates how such situations will occur in Australia. Finally, it proposes a framework of property rights that could be adopted at common law to prevent these problems without the commodification of human tissue occurring.

The evolution of dental group practices

Dentists and the dental profession are changing. One significant change in the deliver of dental care is the evolution of group practices to include networks of dental practices with central management by various service organizations that are owned or financed by private equity firms. This article discusses their evolution and potential advantages and disadvantages for dentists who join them. The article concludes with a prediction about the future heterogeneity of the dental care system.

The role of ownership in environmental performance: evidence from coalbed methane development

One way coalbed methane production differs from traditional oil and gas extraction is in the large quantities of produced water. This water must be disposed of for production to occur. Surface discharge has proven to be a low-cost alternative; regulations are in place to protect surface water quality. This paper investigates the effects of alternative ownership regimes on regulatory compliance. A unique dataset linking coalbed methane wells in Wyoming to water disposal permit violations is used to explore differences in environmental performance across severed and unified minerals. Empirical analysis of these data suggest that ownership does impact environmental compliance behavior. Most violations occur on split estate. Federal split estate wells have more severe violations, though not necessarily more of them. Federal unified wells performed best, with fewer and less serious violations. Wells on private land have more, though not necessarily more severe, violations. These results suggest some room for policy proposals accounting for alternative ownership regimes.

Regulating the use of human bodily material

The articles in this special issue consider recent developments in the law regulating the use of human bodily material and the wider implications of those developments. For some time, the law has accepted that a person who has undertaken "work and skill" on excised bodily material may obtain at least a possessory right; but the person from whom the material came did not have such a right. Now, however, the law has recognised that people may have some legal rights regarding their own bodily material. What is the nature and source of those rights? Should they be expanded? If so, what legal principles are best to do that? The most frequent suggestion is the law of property but many other areas of law are also relevant: the law of contract; tort (bailment and consent); criminal law (e.g., forensic testing); gifts; custodianship and others. These regulatory options are outlined in this editorial and discussed by lawyers and other contributors in their articles in this special issue. There are also stimulating philosophical reflections on the nature of human bodily material.

Biobanking of blood and bone marrow: emerging challenges for custodians of public resources

The Australian Bone Marrow Donor Registry (ABMDR) is a publicly funded company that is part of an international network that facilitates unrelated bone marrow transplantation. This role means that the ABMDR has access to a large biospecimen repository therefore making it a highly valuable research resource. Recognising the potential value of these biospecimens for research purposes, the ABMDR is in the process of determining whether, and how, to share its biospecimens with other biobanks. While this would undoubtedly be of value to the scientific community, and ultimately to the wider community, it would also inevitably transform the role of an institution whose primary role is therapeutic, and would compromise the degree of control that a custodian has over donated material. This article describe the challenges confronting the ABMDR, and organisations like it, in balancing their duties to donors, patients, researchers and the general public. These problems have led inevitably to the use of "property" rights language in the discussion of these issues but notions of gift, ownership, trusteeship and transfer might also be considered.

"Thin" property and controversial subject matter: Yanner v. Eaton and property rights in human tissue and embryos

This article examines the definitions of "property" offered by the majority of the High Court of Australia in the case of Yanner v Eaton (1999) 201 CLR 351, which involved a statute giving the Crown "property" in fauna. It argues that the majority judges in that case endorsed a flexible or "thin" conception of property that is consistent with recognition of property in "things" such as excised human tissue and in vitro human embryos, despite the many differences between such "things" and ordinary chattels. A similar flexible conception of property was also an important factor in the United Kingdom case of Yearworth v North Bristol NHS Trust[2010] QB 1.

Body ownership and research

This article questions whether recognition of property rights in human tissue .would enhance protection of the interests of donors of tissue used for research purposes. Best practice already obliges researchers to comply with a range of legal and ethical obligations, with particular focus on informed consent and research transparency. A number of lawsuits relating to research use of human tissue emphasise the central importance of informed consent to donors. Informed consent of communities, as well as individuals, becomes essential when engaging in research with indigenous peoples. Increasingly genetic researchers are adopting participatory governance as a model for working with communities to develop culturally appropriate genetic studies that address health problems that are priorities for the communities involved. The transparency of the participatory governance model means that participants feel that their autonomy is respected and that their interests are being represented throughout the research process. The question of ownership of samples becomes irrelevant as control is codified through alternative mechanisms.

Property rights in human gametes in Australia

It has long been a basic tenet of the common law that there can be no property interest in human bodies or body parts. However, exceptions to the rule have been recognised from the mid-19th century and developed over time. In the early 21st century, there have been interesting developments in the common law of Australia and England, with Australian Supreme Court judges and the English Court of Appeal casting aside existing exceptions, and finding property rights in human body parts, including gametes, by relying instead on a "rational" and "logical" basis to identify property interests in human body parts.

Laboratory specimens and genetic privacy: evolution of legal theory

Although laboratory specimens are an important resource for biomedical research, controversy has arisen when research has been conducted without the knowledge or consent of the individuals who were the source of the specimens. This paper summarizes the most important litigation regarding the research use of laboratory specimens and traces the evolution of legal theory from property claims to claims related to genetic privacy interests.

Medicare, Medicaid, Children's Health Insurance Programs; transparency reports and reporting of physician ownership or investment interests. Final rule

This final rule will require applicable manufacturers of drugs, devices, biologicals, or medical supplies covered by Medicare, Medicaid or the Children's Health Insurance Program (CHIP) to report annually to the Secretary certain payments or transfers of value provided to physicians or teaching hospitals ("covered recipients''). In addition, applicable manufacturers and applicable group purchasing organizations (GPOs) are required to report annually certain physician ownership or investment interests. The Secretary is required to publish applicable manufacturers' and applicable GPOs' submitted payment and ownership information on a public Web site.

"Adiós Sui Géneris": a study of the legal feasibility of the sui generis right in the context of research biobanks

The European protection of databases has been criticized for having a negative impact on the scientific development and the process of discovery. In the paper it is checked whether one of the most important research infrastructures, such as biobanks, could be entitled with the sui generis right as shaped within the current European legal system.

Power, ethics, and corporate dentistry

The North Carolina Dental Association recently sought to place clear statutory limits on the influence of corporate, nondental interests over dentists practices' decision-making. This report describes the two-year legislative battle with well-funded and politically connected parties that ultimately resulted in laws that protect patients' rights to be treated by a dentist free of outside commercial interests.

Take another little piece of my heart: regulating the research use of human biospecimens

This article reviews the history of the debate over use of biospecimens in research, the legal and ethical arguments that have been presented both in support of and in opposition to such use, court cases and judicial opinions involving disputes between specimen contributors, researchers, and institutions, and public attitudes regarding the use of biospecimens in research. The paper argues that proposed changes to the Common Rule are inadequate to resolve the legal and ethical concerns that have been raised with respect to the use of biospecimens. It argues that there is a need to distinguish between the dual roles - subject and donor - played by contributors of biospecimens.