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A Twitch upon a Thread: Regulation of human tissue use in Australia and the application of property law

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Goold, I (2004) A Twitch upon a Thread: Regulation of human tissue use in Australia and the application of property law. PhD thesis, University of Tasmania.

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Abstract

Since the days of the body-snatchers, human bodies and their parts have been a valuable
resource for science and medicine. They have been used for study, as the raw material
for therapeutics and genetic research, as a source of transplant organs and for the
creation of artistic works. In effect, human body parts are treated in many respects as
items of property for they are possessed, controlled, used, transferred and destroyed.
We even use the language of property to express how we experience our bodies - "I
broke my arm", "He donated his kidney''.
However, the Australian legal system has baulked at placing excised human tissue within
the ambit of property laws. Mosdy a consent approach is taken through legislation and
ethical guidelines, with the exception of some case law that has upheld limited property
rights in tissue. This situation is problematic in part because these guidelines and
legislation cover only some limited uses of tissue, leaving the remainder in a legal
vacuum. In the absence of auy clear status for tissue having been established, it is not
clear how the courts will or should approach alleged misuse of. In addition, the doctrine
of consent fails to determine who may hold rights in tissue in a variety of circumstances.
As a result, situations may arise where it is unclear how tissue may be used and who may
use it. Given the value of tissue for biotechnology and medicine, this should be
remedied.
One suggested approach to these problems has been the application of property law to
human tissue. Due in part to the intuitive practicality of this approach given the current
uses of tissue, and the common law cases upholding such an approach, this issue has
generated considerable academic debate. This thesis seeks to examine the foundational
issues that affect this debate to determine whether a case can reasonably be made for
applying property law to human tissue. In drawing conclusions on the issues that face
the debate, this thesis lays the groundwork for developing a comprehensive legal
approach to tissue use that will address the current lack of consistency in the Australian
legal system's method of regulating tissue use.
It is concluded that it would be possible to regulate the use of human tissue through the
laws of property and that the arguments in favour of doing so outweigh those against. However, this conclusion is conditioned on the recognition that these rights should be
subject to certain limitations.

Item Type: Thesis (PhD)
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Date Deposited: 17 Mar 2014 05:22
Last Modified: 11 Mar 2016 05:54
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