Do you own your body?

[The_Ryan]

*Originally posted by Northern Piper *
**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.**

That’s interesting; thanks for clearing that up. So what remedies are available if the defendant refuses? Can he be held in contempt?

[RexDart]

Thanks to Chula for posting a summary of Moore v. Board of Regents. The newspaper article is of course a simplification. As courts (even those in California) generally prefer to do, the majority wanted the question of protecting a patient’s rights to his cells left up to the legislature, exercising a little judicial restraint.

I believe Justice Arabian’s concurrence in part reveals the true reason many people object to this approach. Arabian raves on and on about the possibility of a black market in body parts.

ResIpsaLoquitor has not fully examined the issue of the prostitute and the contract. First off, it seems less like “selling” any present estate/possessory-interest in the body than it does granting a license for use. Licences, of course, are by their very nature revocable, and I can’t see a court granting a request to make such a license irrevocable in equity. Even if you conceptualize it as “leasing” the body, that’s still not a type of contract where specific performance would be granted. Generally that remedy is reserved for sales of present possessory interests in land. Even then from a contract perspective, the court would only grant specific performance if damages were somehow inadequate. While a particular parcel of land might have unique characteristics, a prostitute surely does not (well…not considering what she’s about to be used for.)

I believe it would a good thing to give a possessory interest in one’s own body. You could then say that this interest is limited by the Constitution, and is thus non-transferrable. A non-transferrable possessory interest is not worthless, however. It would have given Moore an action for conversion, for instance. The court errs in assuming for some reason that to give the action would give Moore all the common law rights associated with ownership of personal property. Since the Constitution limits those rights, this would not have been the case. Justice Arabian’s paranoia about a market in kidneys was unfounded from the start, regardless the outcome of the case.

[Northern_Piper]

*Originally posted by ResIpsaLoquitor *
**Well, I can see my co-counsel Piper has been doing a fine job in my absence… **

Oh sure, leave me alone at the counsel table to get peppered with questions from the bench, then come stolling in… probably been schmoozing a white shoe law firm for a summer clerkship, leaving me to slave away…

[Northern_Piper]

*Originally posted by The Ryan *
**
That’s interesting; thanks for clearing that up. So what remedies are available if the defendant refuses? Can he be held in contempt? **

It would likely depend very much on the specific remedial laws in your own jurisdiction. I’d doubt that you’d seek an injunction, since you already would have a court order for specific performance, so there’s not much point in getting another order.

Just off the top of my head, I can think of four different possibilities:

1. An equitable order of the court, doing what the defendant should have done. Specific performance is an equitable remedy. Historically, if the defendant refuses to obey the order of a court of equity, the court has had the jurisdiction to carry out the necessary formalities itself, in place of the defendent. So if the defendent refuses to convey Blackacre, as required by the order of specific performance, the plaintiff can draw up the transfer and ask the court to execute it in the place of the defendant, using its equitable powers. The transfer would be from the defendant to the plaintiff, but the signature at the bottom would be the judge or the clerk.

2. In some jurisdictions, the Land Titles system has a provision where the Court can order the rectification of a title. It’s similar to the equitable remedy, but depends on the specific statutory provisions of the jurisdiction.

3. In serious cases, where the other remedies don’t work for some reason, a court may issue a contempt citation.

4. In the really serious cases, there may be a criminal offence of refusing to obey a court order.

[ResIpsaLoquitor]

Piper, believe me, I would have taken the big firm job if they’d offered it. I’ll be paying off these loans from now until kingdom come…

Just a side note, one thing that worries me in the court providing a damages remedy is that, if it’s high enough, the prevailing plantiff might effectively blackmail the defendant…i.e., “I’ll drop the suit if you perform.” Let’s say prostitution were legal, and somebody sued on breach…let’s also say the damages were determined to be, I dunno, $100,000. That’s probably beyond the prostitute’s price range, and garnishing her wages might be just as painful. Her alternative is to perform (although there still might be some punitives there).

That scenario is unlikely, of course, but there’s other possibilities where this might be a problem. I.e., a reneged contract on a surrogate pregnancy…which is the topic of that mammoth paper I’m writing.

[monica]

I don’t think you can really own your body. If you could, then why is it against the law to commit suicide?

[Telemark]

*Originally posted by monica *
**I don’t think you can really own your body. If you could, then why is it against the law to commit suicide? **

Cite?

I’m not convinced that it is illegal to commit or attempt suicide. You will likely be taken into psychiatric care, but I don’t believe you will be charged with a crime.

Helping someone commit suicide is a crime, but I don’t think it is illegal to kill yourself.