'Dismantling Doodeward: Guided Discretion as the superior basis for property rights in human biological materia' by Kate Falconer in (2019) 42(3) UNSW Law Journal 900 comments
For over a century the Australian High Court’s decision in Doodeward v Spence has dominated questions of property rights in the human body. Beginning with the Supreme Court of Western Australia’s decision in Roche v Douglas in 2000, however, Australian courts have developed an alternative ‘guided discretion’ approach to finding property rights in human biological material. This approach provides a normative framework for judges deciding the property question. The existence of two legal bases that answer the same legal question within the Australian common law is unnecessary and undesirable. This article examines the case law applying the more recent guided discretion approach and identifies its three essential features. It then presents four arguments as to why Doodeward should be superseded by the guided discretion approach in questions of property rights in human biological material.
The Australian High Court’s 1908 decision in Doodeward v Spence (‘Doodeward’)1 has played an integral role in the development of the concept of the human body as property across the common law world. Famously concerning a two-headed foetus that had been preserved in paraffin oil and exhibited at a fairground, Doodeward held that the lawful application of work or skill to a human body (or part thereof) would turn that body from mortal remains to moveable property. This ‘lawful work or skill’ exception to the traditional rule that there is no property in a corpse, referred to in this article as the ‘Doodeward exception’, has been repeatedly cited by courts both in Australia and overseas in the 11 decades since it was handed down.
One hundred and ten years after judgment was issued in Doodeward, the Queensland Supreme Court decided Re Cresswell. In that case Brown J applied the Doodeward exception to find property rights in samples of sperm that had been removed from a deceased man after his death. Before applying the work or skill exception, however, her Honour considered an alternative body of precedent developed by common law courts within the past two decades that would allow for property rights to be found in the sperm samples even without the application of work or skill. With a focus on the seminal Australian decision Roche v Douglas (‘Roche’), this article examines the case law that makes up this alternative body of precedent and the new approach to property rights in human biological material it represents.
Referred to in this article as the ‘guided discretion’ approach to property rights, the case law examined in Part II reveals that this new approach to property rights provides a normative framework for courts faced with the question of property rights in human biological material. Under this framework judicial discretion to choose between two alternative outcomes – making a finding of property rights in human biological material on the one hand and declining to make that finding on the other – is guided and constrained by three elements: the detachment of the material at issue from the source individual, practical concerns of the court and the litigants before it, and the factual and legal context of the dispute.
With the former applying to human biological material removed from the source individual post-mortem and the latter currently limited in its application to material removed pre-mortem (and so providing an exception to the common law rule that a living person cannot be the subject of property rights), the work or skill and guided discretion approaches now represent two competing legal bases for the finding of property rights in human biological material within the Australian common law. Part III of this article examines the Australian case law and argues that the existence of two separate approaches that can be used to answer the same legal question and reach substantially the same result is unnecessary and undesirable. To this end, it sets out four arguments as to why the Doodeward work or skill exception should be superseded by the more recent guided discretion approach within the Australian common law. These arguments reveal the superfluity and inadequacy of the Doodeward exception, and lead to the conclusion set out in Part IV that the Australian High Court should take the next available opportunity to reject Doodeward in favour of the guided discretion approach in cases concerning property rights in human biological material.
