Human tissue - who owns it?
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Associate Professor Cameron Stewart |
The Australian public was outraged when news broke about the harvesting of body parts and human tissue without permission. Some five years since the scandal, Associate Professor in Law Cameron Stewart says there is still not a great deal of protection for people's bodies.
New South Wales human tissue scandal
In 2001 the New South Wales Minister for Health revealed that 25,000 body parts were stockpiled in universities and hospitals across the state, many kept without family consent. Community outrage was heightened following an investigation by Channel Nine's Sunday program.
Sunday revealed that the Institute of Forensic Medicine (Glebe Morgue) harvested organs during coronial post-mortems. These organs had nothing do with helping establish the cause of death and the consent of relatives was not sought. In fact in the early 1990s 90 per cent of bodies from the Glebe Morgue were buried without brains.
"It was common for brains to be taken, for procedures to be practised and for forensic experiments to be done on deceased persons without consent," says Stewart.
Human tissue as property
According to Stewart the main problem with protecting the deceased lies with the way the law characterises human material. As the law stands today, human tissue only becomes property after it is processed.
"The law says that if human tissue has been processed in some way it becomes property through the processing," explains Stewart. "To my mind this creates a society-based problem because people expect they have some claim to the remains of their deceased relatives. This is not necessarily being borne out by legal recognition."
Stewart believes that the law could respond by recognising some form of limited property rights in tissue that begins before processing. To date there has been some reluctance to label human tissue as property. This dates back to the 19th century with concern about the association between humans and property being akin to slavery.
The law as it stands
"In New South Wales tissue is seen as a medical record and if it is kept for a reason, people can get access to it if they want to," says Stewart. "It's not classed in terms of property law, but in the terms of categorisation this is exactly what it is - rights of access, exclusion and control.
"At the moment the law seems unable or unwilling to recognise property rights in families and that has created problems. My argument is that these regulated responses look like property anyway, so why don't we just call them property."
Undertaking postgraduate research
Stewart's primary research interests lie in human tissue, end-of-life decision making, advanced care planning and guardianship law. At Macquarie he is the convenor of Property and Equity as well as Health, Law and Ethics. Stewart is currently supervising a PhD student who is undertaking research into human tissue, particularly the history of cannibalism and the Commonwealth. He is happy to take on other students who have an interest in his research areas.
For further information contact Associate Professor Cameron Stewart cameron.stewart@mq.edu.au