Simple question, given the following
Hookers have been selling their bodies for millenia.
Exploitation. The worry is that if it’s legal for you to sell a kidney, the desperate poor are going to be exploited, offered a paltry few thousand for their healthy kidney, and that they’d go for it. The rich would have no shortage of replacement kidneys available as needed, and the poor would have only the one.
The plethora of drug and prostitution laws in this country, as well as less common laws like requiring parental consent for piercings, should make it clear that you don’t own your body.
I’m writing a paper on topic related to this (specifically, who the “parents” are of a child born of assisted reproduction, i.e., sperm or egg donation). My short answer is no, specifically meaning that you don’t have possessory rights in your body the same way you have possessory rights in a car.
Property theory is basically understood as a “bundle of rights” in an object. For example, if you own, say, a car, you have possessory rights in the car to the exclusion of anyone else in the world. If you’re renting a car, you’ve got rights to the exclusion of everyone else except the leasing agency. If you borrow your parents’ car, your parents still have exclusive rights, but you’re acting as a steward of the car.
The reason we don’t apply property theory to the human body is because it’s the wrong theoretical path to take. (It might be ok to say you “own” your body, but not in a LEGAL context. Get it?)The body as property means that you could, in theory, “sell” your body or its parts–meaning that contracts for sale would be enforceable. This would mean, for example, a contract for prostitution would be subject to specific performance, meaning if the contract were made and the prostitute suddenly decided to back out, she’d have to make good because the contract is valid.
Or…think of this fun one…you agree to sell the limb, organ, or genitalia of your choice. There’d be no backing out. And if you sold your whole body, what happens to your person…the thoughts, memories and collective experiences that make you a distinct individual? Do we stick you on a computer disk and let you fend for yourself?
Short answer: it’s not appropriate to say that you own your body. It’s better to think of the body as something part and parcel of the human person, parts of which may be severable, but not the whole.
I’m currently renting my body, with an option to purchase. I also have right of first refusal.
Let me get this right, I can own a car but I cannot own my own body? If that is your case who owns my body? God?, the public?, the government?
What about donating organs. According to your arguement I could not donate an organ because my body is not mine.
You are trying to make your arguement fact when it is just your opinion.
[QUOTE}The reason we don’t apply property theory to the human body is because it’s the wrong theoretical path to take. (It might be ok to say you “own” your body, but not in a LEGAL context. Get it?)[/QUOTE]
That is just your take. It is your subjective feeling on the issue. (Note, basically you admit that what you believe in is a value judgement)
My body belongs to me. My mind and my body. According to you I could not get a tattoo or eat fast food and get fat because my body is not mine to control.
You fall into a catagory I hate. People who try to limit and control other people. If I decided to sell a kidney or a limb it is none of your buisness. My body is mine, not yours and you have no right to limit what I do with my body.
Slee
I think a better way to put it would be “Someone else can buy your car, but someone else cannot buy part of your body”… with several caveats, of course (such as in the instance of organ donation). You can do whatever you want with your body (or you should be able to, anyway, in my opinion), but someone else can’t, even if you give them permission to.
Here’s another thing to ponder: Can your best friend Frank bludgeon you to death with a crowbar so long as you give him permission?
I think it’s more that, under the law, you are your body…your body is part of you. It’s not something seperate from you that you own.
Because it would be unconstitutional:
Sleestak, I don’t see ResIpsaLoquitor saying that you don’t control your body; he’s saying that the legal system does not approach issues of control over one’s body under the law of property. (See my previous post.)
You’re quite right that you have control over your body, but that’s an inalienable right. It’s not a property right. That’s why both the Fifth Amendment and the Fourteenth Amendment list “life, liberty and property”. The individual’s has rights to all three, but the way the legal system will protect those rights will vary. Property laws are not the appropriate way to protect human dignity and self-determination.
Property laws apply to things, not to people.
Cf. Northern Piper, SPOOFE, and Captain Amazing.
Isn’t it true that a raped woman has no legal right to sue her rapist since she technically doesn’t “own” her body? Isn’t rape considered a crime against the state, not against an individual?
IANAL, so please correct me if I’m wrong.
An interesting case involving property rights over your own body:
Women do have the option to sell their eggs. (Given, of course, that they are in the right age groupd and in good health.) How does that fit in with the concept of not owning your body?
[sub][sub][sub]"If you cut off my head, would I say, ’ “Me and my head” or “Me and my body?” '[/sub][/sub][/sub]
I think you’re confusing the criminal law with civil remedies.
As a general rule, in common law legal systems, crimes are considered offences against the public generally, so the prosecution of those crimes is entrusted to the state. The victim of the crime may have some input into the process, depending on the laws of the particular jurisdiction, but generally speaking the state is responsible for prosecuting the crime. Thus, the victim of the crime is not the prosecutor.
However, when someone commits a crime of violence against another person, they lay themselves open to civil liability under the tort system, such as the torts of assault and battery, intentional infliction of mental distress, and so on. (The exact names given to the torts can vary from jurisdiction to jurisdiction.) It’s up to the victim of a tort to sue the tortfeasor in the civil courts - the state normally has no involvement in that civil action. (Although state officials such as the police who investigated the crime may be called as witnesses by the plaintiff.) If the plaintiff is successful, the civil court awards damages against the tortfeasor. (Whether the attacker has any resources may influence the plaintiff in the intial decision on bringing a suit.)
So, in the example of a woman who has suffered sexual assault, odds are that she wouldn’t have much control over the conduct of the criminal prosecution, but she would have full control over any civil remedies she may seek against her attacker.
I’ll have to respond to that in a pretty general fashion, since the exact analysis may vary from jurisdiction to jurisdiction.
There are two aspects to your statement: the right of the woman to donate eggs, and her right to charge for them.
On the first part, I would imagine that in most common law jurisdictions, the answer would be that as an aspect of your right to control your own body, you can decide to give up parts of it, whether that’s cutting off strands of hair or something more serious, such as egg or kidney donation. Control over your own tissue is part of your human right to control your own body.
The second question is whether you have a property right in tissue removed from your body, and if so whether you can sell it. That question will depend largely on the nature of the tissue and the laws of the particular jurisdiction. For renewable tissue like hair, it likely is the case that you can sell it. However, for more significant types of tissue, such as kidneys, bone marrow and eggs, some jurisdictions may take the view that you don’t have a property right in the tissue. You can decide whether or not to donate the tissue to someone else, but you may not be able to charge for it. It’s up to to the Legislature of each jurisdiction to decide if such tissue can be the subject of commerce.
Clarification: she would be liable for not making good. Breach of contract is a civil offense, not a criminal offense. She could just refuse to make good, and pay damages.
However, a situation even more worrisome than the one you present is if, in the event of a bankrupcy, creditors could “reposses” your organs.
Northern Piper:
I can’t see how forcing someone to go into a combat zone against their will isn’t slavery, but allowing them, of their own free will to, to sell their body is. Furthermore, it does contain the loophole that it is legal if preceded by a criminal conviction.
The Ryan, with respect to ResIpsaLoquitor’s point, he’s referring to the civil remedy of specific performance, which is another type of remedy in the civil courts, instead of damages. He’s not referring to the criminal law.
In property disputes, the plaintiff always has the option of arguing that damages are not an adequate remedy; that he contracted to buy or rent a specific piece of property; and the courts should order the defendant to deliver that property, since he can’t obtain it elsewhere even if he gets money damages. The defendant always has the option of arguing that damages are an adequate remedy and that specific performance should not be ordered, but it’s the court that decides.
That position illustrates one aspect why property law does not apply to the human body. If it did, and an offer to provide sexual services for money truly was a rental of the property, then the other party could argue that he had purchased/rented a specific body; that damages would not be an adequate remedy; and therefore the civil courts should order specific performance of the rental agreement. I think just spelling it out in this way illustrates the repugnancy of applying a property analysis to the human body.
With respect to the two questions you asked me, the Supreme Court has held that compulsory military service does not infringe the 13th Amendment. (I might have reached a different conclusion, but they’re the Supremes, after all. 
)
The case was Arver v. U.S. , 245 U.S. 366 (1918), and involved a challenge to the draft law in force in WWI. The Court upheld the laws against several different types of challenges, including a challenge based on the 13th Amendment. Its holding on this point, at the very end of the case, was very brief:
With respect to the second question you asked me, well, selling oneself to another person, even if voluntarily, is the very definition of slavery. A free person can always back out of a contract for services, at the risk of paying damages, but a slave cannot, since he/she no longer owns his/her own body. The 13th Amendment was aimed directly at this very issue, and so even a voluntary “sale” of oneself comes within the heart of the Amendment.
Well, I can see my co-counsel Piper has been doing a fine job in my absence… 