Title to tissue
Recent experience of medical procedures prompts the author to review the still embryonic law regarding property rights in human body parts
Human beings are simple things. Sentient sacks of flesh, blood and bone are interested in what happens to them. Such happenings might drive them in their career paths, as was the case with the forebear of a man I met in Albert, France, on the 95th anniversary of the Battle of the Somme. The forebear in question had apparently taken a bullet through the mandible in the Great War and, after being invalided home, became an expert in jaw injuries.
Others might only take an interest in an area of the law after a trigger event: I suspect the pursuer in Cowan v Hopetoun House Preservation Trust  CSOH 9 had little interest in the Scots law niceties of occupiers’ liability until he fell over a ha-ha and broke his ankle.
So it was with me. Sure, I had studied – even taught – property law, and in so doing encountered what was, to me at least, a theoretical area of law about ownership of human tissue. I listened to and occasionally giggled at Professor Norrie’s family law lectures at the University of Strathclyde (who can forget the marriage lecture?), perhaps learning something about the legal regime pertaining to reproductive tissue in the process. (You will find that regime largely in the Human Fertilisation and Embryology Act 1990.) I contentedly donated blood, grateful for my lack of fear of needles, never really thinking about the proprietary consequences of that gift to someone else in need of O+ red blood cells.
I look back on those innocent times nostalgically. My own medical circumstances mean that I will never again enjoy a Tunnock’s teacake after a donation to the Scottish National Blood Transfusion Service. That is because in August last year I found myself in a hellish object lesson, after being diagnosed with metastatic testicular cancer. (I blogged on this here, selected by the editor as Blog of the Month in September 2013.) This does not make me in any way unique or worthy of special sympathy. I have no doubt many readers of this note, or those they are close to, will have danced with oncology or other serious ailments at some point, and I am lucky enough to be writing a slightly self-indulgent legal analysis after receiving the “all clear”. Whilst I am not unique, the incident did change my perspective irreversibly.
Informed consent to treatment? Aye, whatever. Just give me the form, good doctor, and I will sign it. Thank goodness I am not afraid of needles, I hereby consent to you and your team engaging in what might otherwise be assault. You think I should go to the local fertility centre for semen storage? Gosh, I had not pondered the fertility side of things, having quickly moved to the “please keep me alive” stage of post-diagnosis reaction, but I suppose I am pleased that you, good doctor, are thinking about my post-treatment potential for a future family even if I am not. You want to use the tissue surgically removed from my body during a retroperitoneal lymph node dissection for pathology and research? No problem! Heck, I did not even know I had retroperitoneal lymph nodes until you mentioned them. Go wild!
And so it went on. All of these things have numerous legal implications, not to mention risks. (Lawyers who struggle to explain risks to a client in a legal opinion really should imagine how tricky it is for doctors.) Generally, my treatment progressed to plan, bar one disconcerting episode after a non-prescription of blood-thinners that I will not rehearse here, so I am pleased my object lesson did not culminate in a test case of Combe v NHS Grampian. The only actual legal complication that I happened upon in my treatment was my attempt to get involved in a testicular cancer study hosted at Leeds. My involvement would have been the provision of blood samples. I told my oncologist about the study. A few days later that oncologist told me my Scottish-based blood was probably not suitable for this project, owing to concerns about cross-border issues relating to human tissue legislation. I did not press the point at the time, much as I might have enjoyed the challenge of mulling over the legalities, deciding instead to concentrate on getting better.
Contemporary issues – post-mortem usage of body parts
My own object lesson provides a bit of context and insight, but other sources relating to human tissue merit more detailed consideration. Niall Whitty’s comprehensive analysis sets out the approach – or, in some cases, his preferred approach – of Scots law from both a delictual and proprietorial perspective (“Rights of personality, property rights and the human body in Scots law” (2005) 9 Edin LR 194).
That analysis preceded the Human Tissue (Scotland) Act 2006, which (together with associated regulations) governs transplants from persons living (ss 17-18) and deceased (ss 3-16: use of organs for research is also covered here). The 2006 Act also made amendments to the Anatomy Act 1984, which are relevant to anyone wishing to make an effective medical bequest for the purposes of an “anatomical examination”, as detailed in an earlier article in this journal (Wood, “Giving up the body”, Journal, May 2009, 20).
Whitty also wrote prior to the reporting of Stevens v Yorkhill Hospital NHS Trust 2006 SLT 889. That case can be taken as a clarification that the unauthorised removal and retention of organs in a post-mortem (in Stevens, the brain) is an actionable wrong, allowing the mother to claim solatium on the basis of the actio injuriam – an approach that is in line with Whitty’s thinking.
One matter Whitty was able to consider in detail was the McLean report (Independent Review Group Final Report on the Retention of Organs at Post-Mortem, 2001), which related to the retention of organs of deceased children (i.e. the issue tested in Stevens). This note is written in the aftermath of two similar but slightly different reports.
The first, authored by Dame Elish Angiolini, was an independent investigation into the historical practices at Mortonhall Crematorium (Mortonhall Investigation Report, 2014, available at www.edinburgh.gov.uk/mortonhallreport). That report was commissioned by Edinburgh City Council and therefore does not have an instant input into the Scottish legislative process, but it is noteworthy that Angiolini was moved to opine that “The legal framework governing the cremation of foetuses and infants in Scotland is peppered with gaps, ambiguity and uncertainty.” She highlighted the Cremation (Scotland) Regulations 1935 for criticism, and also noted that no specific rules applied for foetal remains (that is to say, all foetuses following cases of pregnancy loss before 24 weeks' gestation).
A more recent report by a group chaired by Lord Bonomy reported in June (Report of the Infant Cremation Commission, 2014, at www.scotland.gov.uk/Publications/2014/06/8342). Like the Mortonhall Investigation Report, this makes a number of recommendations, including in relation to the exact definition of “ashes”. A new Burials and Cremation Bill is now expected from the Scottish Government, which will go out for public consultation by the end of 2014.
Contemporary issues – sperm
Turning now to a slightly different post-mortem issue, a recent case in England ruled that a widow should be able to use the sperm of her deceased husband even though he had never formally consented to long-term storage of the sperm prior to his death (Warren v Care Fertility (Northampton) Ltd  EWHC 602 (Fam)). There, Mrs Justice Hogg ruled that article 8 ECHR (private and family life) was engaged and, following on from R v Human Fertilisation and Embryology Authority, ex p Blood  2 All ER 687 and amendments to s 28 of the Human Fertilisation and Embryology Act 1990, this case shows a trend to facilitate posthumous paternity where the deceased father is recognised as the father of the child. A similar case in South Australia ruled that a widow was entitled to use the spermatozoa of her late husband medically extracted shortly after his death (Re H, AE (No 3)  SASC 196). Although there is no Scots precedent that is directly in point, any future Scots case would do well to consider this comparative jurisprudence.
From matters posthumous, to matters inter vivos. The case of Holdich v Lothian Health Board  CSOH 197 makes for challenging reading, both legally and for me. The story there begins with a man about to undergo treatment for testicular cancer, who deposited sperm in a cryogenic storage facility. After treatment, the (now infertile) testicular cancer survivor requested access to his stored sperm so that he and his wife could try to have children by in vitro fertilisation, at which point he was told that there had been a malfunction in the storage vessel, leading to a rise in temperature such that the sperm could no longer be relied upon as viable. An action was raised, on a number of bases, and Lord Stewart allowed a proof before answer.
In a lengthy judgment, Lord Stewart explains why a proof before answer was appropriate, albeit the exact head on which he expected the pursuer’s action to proceed is not instantly clear (especially in relation to property law). Perhaps anticipating critique, Lord Stewart notes (at para 5) that:
“Academics may be irritated by the opinion's apparently narrow knowledge base and by my failure to address the philosophical, ethical and policy considerations: but court judgments are about particular disputes and have to be based on the arguments and material presented.”
No irritation is expressed by this academic, who can well appreciate the particularities of the dispute. Indeed, for very personal reasons, I am grateful to Lord Stewart for not dismissing all or part of the action out of hand, albeit I acknowledge that dispassionate property scholars may have wished for a clearer analysis of property theory (at paras 75-76). That being said, Lord Stewart raises a fascinating argument about “functional unity” and whether it would be “far fetched to deal with viable biomatter outside the body as part of the subject's person” (in terms of a personal injury claim). That matter is ripe for further study or argument, albeit that was not pursued in Holdich. (I understand it may be some time before the Holdich proof takes place.)
The private law regulation of the human body is an area that is ripe for further study. This note has not even begun to consider issues like the patentability of the human genome or the treatment of embryos, and that which I have analysed, I may have analysed superficially. But so be it. In publishing this short note, the biggest risk I face from omission or superficiality is by way of a public rebuke or a snarky letter to the editor of this Journal, but the medical practitioners I have a rediscovered respect for are regularly faced with snap decisions and very real consequences. Happily, I am now in a position to stop worrying about such consequences in relation to my treatment, and my family were not confronted with any legal questions about what to do with my organs, but there are still some questions about human tissue that Scots law struggles to contend with. I hope this note might provide a little bit of context for future study.
Malcolm M Combe, University of Aberdeen
Thanks to staff and students at the University of Aberdeen, former colleagues at Tods Murray LLP, and friends from all over the profession for all their support over the past year. A special “thank you” to Messrs A Graham MacDonald and David Hendry and their respective teams at Aberdeen Royal Infirmary and Gartnavel General Hospital for their contribution to this article (by which I mean, keeping the author alive).