Rolling the bones: Decisional law and the risks of treating the body as property

Innovations in technology, particularly in the field of the new biology, alter current ideas of what belongs to a person---i.e., culturally informed body boundaries that delimit what is and is not "us" and define each of us as separate and unique individuals. Advances in the new biology call into question these seemingly rigid or unchanging body boundaries. Recent developments in medical genetics are particularly important, because the human genome is both unique to each individual and not unique to each individual simultaneously. This sharing or "overlap" of genetic markers blurs the boundaries between individuals, be they relatives or non-relatives, and introduces competing interests in body tissues. As such, legal suits concerning the new biology are often brought before the courts, and these technological advances affect and help shape criminal and civil law; challenge the limits of intellectual property rights; create the need for improved informed consent procedures; shift the balance of privacy rights; and raise issues of the ownership of and authority over stored human tissues. In turn, by ruling on such cases, judges betray and influence social notions of body boundaries. An examination of such lines of cases reveals so-called body boundary markers as well as the philosophical approaches to the human body on which these rulings are based. An inductive method examining 408 judicial opinions from U.S. cases from 1872 to the present has been used to analyze legal notions of body boundary markers as the new biology has emerged. Results demonstrate that unlike lay beliefs of the body, its parts and, especially, its DNA as "fixed," "unique" and "rigidly bounded," law that occurs at the site of the body is fluid, determining what is or is not "us" differentially along a continuum and balancing the legal interests between persons and society. In examining legal body boundaries in the twentieth century, two main themes emerge---intent and risk. Taken together and applied by the courts, risk and intent permit or proscribe the uses of the body. Seen in this light, bodies are less antagonistically both of value and beyond value.