DONATED ORGANS, PROPERTY RIGHTS AND THE REMEDIAL QUAGMIRE

Abstract

Novel analytical contexts have given courts a fresh opportunity to re-examine the so-called no-property rule in dead bodies and body parts which has dominated English jurisprudence for more than 200 years.1 A major challenge has come from issues raised by the availability of organs for transplantation.2 Burning questions include the status of, and the legal protection available for, harvested human organs awaiting transplantation. Although transplantation technology has been with us for more than five decades, much of the attention from the academic community has centred on ways of addressing the perennial shortage of organs and devising imaginative means of improving supply.3 Consequently, engagement with the frameworks for legal responses to the potential liability issues is relatively scarce.4 However, recent cases have provided the impetus for this much needed analysis.5 Using Calabresi and Melamed's framework,6 Palmer has argued that liability rules are superior to property...