Do We Actually Own Our Bodies?

In fact, the real question is even bigger than that. Since the abolition of slavery, the entire capitalist property system has been based on the very reasonable premise that it is not possible to own a person. Conversations around ownership of bodies are therefore really discussions about whether or not the physical body counts as part of the person, and whether it’s possible to alienate one’s anatomy from one’s “self”.

The Current Body Of Work

First of all, it’s important to clarify what we mean by “ownership”. It goes without saying that we all have exclusive rights in our own bodies, but it’s unclear if these entitlements amount to ownership in the same way that one can own “things” or something completely different. When it comes to legal precedents, two stand-out cases set the tone for this debate.

The first is the well-known story of Henrietta Lacks, whose unique tumor cells were used to create the world’s first immortalized cell line for scientific research in 1951. Lacks herself died in poverty a few months after her cells were taken, and while her family was cut out of the spoils generated by the patented HeLa line, others have made fortunes.

It took until 2021 for the Lacks estate to finally receive a payment from biotech company Thermo Fisher Scientific, although the matter was settled out of court and not litigated, which means there was no official ruling on whether Lacks’s cells – or the products created from them – were her legal property.

Though not as famous, a more decisive incident occurred in 1984, when Dr David Golde of the University of California obtained a patent for a cell line capable of producing large quantities of lymphokines (a component of the immune system), which he created from the spleen of a leukemia patient named John Moore. Shortly afterwards, Moore sued Golde and the university, claiming ownership of the cell line since it came from his excised biological material.

However, in 1990 the Supreme Court of California ruled that the cell line’s economic value had been entirely created by Golde, and was not an inherent property of Moore’s spleen cells. The court therefore awarded Golde ownership, essentially ruling that the cell line was an artificial commodity that in no way represented any part of Moore’s person. In doing so, the court confirmed that from a legal standpoint, body parts can indeed be converted into “things”, thus completely separating them from the self.

How It Started…

The idea that we own our bodies has its roots in the arguments laid out by the 17th-century philosopher John Locke, the “father of liberalism”. According to Locke, any person who is not a slave must by definition own their body.

Moreover, Locke insisted that all non-slaves have a right to own the fruits of their labor, and even argued that there is no inherent value in the natural world until it is transformed by this labor. For instance, according to this theory, a field is economically worthless until a person works the land and makes it productive, at which point that individual has the right to claim ownership of the harvest as the product of their labor. By erecting a fence to protect the land, that person may even claim the field as their own.

Within the liberal capitalist property system, this Lockean concept essentially justifies the very existence of all private property. “It’s the foundation for everything we own,” James Toomey, Associate Professor of Law at the University of Iowa College of Law, told IFLScience. “Because when you mix your labor with the outside world, you create ownership in that, but it’s derivative from your ownership in the body, which we just take as a given.”

[Kant argues] that it’s wrong to think about the relationship between you and yourself as ownership… It’s sui generis.

Professor James Toomey

Taking their cue from Locke, some libertarian thinkers argue that we should be free to sell our sexual services as well as our organs.

Yet Locke’s ideas were challenged by the 18th-century German philosopher Immanuel Kant, whose work underpins the main argument against ownership of the body. “In Kantian philosophy, the fundamental moral distinction is between persons and things,” says Toomey. “And one of the fundamental entailments of that distinction is that things can be owned and persons cannot be – and that includes self-ownership.”

Kant isn’t saying that people don’t own their labor, but simply argues that “it’s wrong to think about the relationship between you and yourself as ownership,” explains Toomey. “It’s just something else. It’s sui generis.”

With regard to bodies and their parts, Kant believed that these could not be isolated from the person, since our physical husk is an essential component of our existence as persons. Moral arguments like these have been used to support the criminalization of prostitution as well as the Human Organ Transplants Act, which came into force in the UK in 1989 and bans the sale of human organs – something that is legal in the US.

…How It’s Going

If you’re looking for a legal answer to the general question of whether we own our bodies, at least in the United States, you’re not going to find one.

Professor James Toomey

Despite their enormous influence over property law, both Locke and Kant developed their theories long before biotechnology was a thing, and neither ever expected their ideas to be applied to cell lines, donor organs, or DNA. Were they alive today, it’s likely that even they would agree that their philosophies need to be adapted and updated – or perhaps even abandoned – to reflect the incredibly complex modern reality.

Coming up with a new one-size-fits-all approach is not easy, though, which probably explains why we haven’t done so. “If you’re looking for a legal answer to the general question of whether we own our bodies, at least in the United States, you’re not going to find one,” says Toomey. “There simply isn’t such an answer.” 

“What we do have is a hodgepodge of ownership-adjacent rules and principles which treat bodies and organs differently than other things,” he clarifies. “You might say the paradigm is a little bit like ownership. You could even argue that it is ownership. But we don’t call it that, and at the same time, we don’t clearly say it’s not.”

Among these legal standards is a precedent set by the so-called Myriad Decision of 2013, when the US Supreme Court ruled that Myriad Genetics, Inc. should not be allowed to patent a pair of human genes that it had been working with to develop new cancer screening methods. The decision essentially came down to the fact that DNA sequences are products of nature and can’t be owned by anyone.

Building on this notion, Toomey has developed his own theory, which states that people may own something as long as they have “the physical ability to exercise control over that thing in the world.” Outlining his ideas in 2023, he wrote that “under this theory, cells, organs, gametes, embryos, and corpses can be owned,” since a person has the exclusive right to decide what to do with their own biological material.

“But information – like genes and personal data – that cannot be controlled cannot be owned,” he continues.

Clarifying his theory, Toomey says that “we don’t own the information in our genes, or at least we don’t own the information in our genes that’s shared with other people, which is, of course, the overwhelming majority of it. And the reason for that is we cannot exercise control over that information. 

“It exists in everyone else, and so if I don’t want someone else to have it, it’s not possible with all the firepower in the world to prevent others from getting it.”

Applying this concept to the Moore case, Toomey suggests that the court might have to reverse its decision, since the value of the cell line patented by Golde was “informational” as it resided in the genes contained within these cells. “My theory says that, in fact, it is not possible to own information in genes and so from that perspective, the doctors don’t own that information any more than Moore did when he walked in.”

Does It Even Matter?

According to Toomey, the main reason why the law hasn’t bothered to definitively accept or reject body ownership is that “it’s not clear how much it matters on which side of the conceptual debate you come down, because basically everyone agrees that, if we say that you own your bodies, we’re still going to regulate that ownership in a very different way than we regulate your ownership of objects or land.” In other words, it makes no difference if you call it ownership or not, as there will always be a unique set of rules determining what you can and can’t do with your body and its parts.

The more interesting questions therefore concern how we are going to define these rules as biotechnology develops in the future. Reproductive technologies, for instance, pose a significant challenge since they entail the fusion of DNA and cells belonging to a father, a mother, and an unborn baby. The property rights of three individuals therefore merge in an embryo, so how do we decide who owns what?

It was exactly this puzzle that complicated the Davis v Davis case of 1992, in which the Supreme Court of Tennessee struggled to decide which of two divorced parents should be granted custody of their frozen embryos. “These sorts of questions about reproductive technology really are pressing and have to be resolved sooner rather than later if we’re going to be able to see progression in the regulation,” says Toomey.

Future technologies that transform us into cyborgs and chimeras, meanwhile – not to mention those enabling mind-to-mind communication – are all so far beyond the scope of anything that Locke or Kant could ever have imagined that they render all existing arguments useless. And with no clear legal answer to the question of body ownership, it looks like we’re just going to have to cross those bridges when we come to them.