Property Interests in Human Tissue: Is the Law Still an Ass?

In this chapter, we ask whether the law is still ‘an ass’ when it comes to its treatment of human bodily materials. We start with an historical snapshot of the law in the United Kingdom (UK) in 2002 when Brazier made this observation. Her comments at the time must be understood within the wider context of the then lack of clarity in the law generally regarding bodily materials, whether from the living or deceased. We then examine subsequent developments in the jurisprudence relating to property and bodily materials to see how the legal landscape has changed, focusing on the recent shift towards the recognition of limited ‘source’ property rights which has occurred. Our analysis draws, in particular, on the judgments in four recent cases: one in England, Jonathan Yearworth and Others v North Bristol NHS Trust ; 3 and three from Australia: Bazley v Wesley Monash IVF Pty Ltd ; 4 Jocelyn Edwards: Re the estate of the late Mark Edwards ; 5 and Re H, AE. 6 In examining these cases, we demonstrate how the work/skill exception has been criticised in the English case and subject to a novel repurposing in the Australian ones.