Jesse Wall’s Being and Owning: The Body, Bodily Material, and the Law addresses the legal status of ‘bodily material’; items which used to be, but are no longer, part of a living human organism: especially, ‘separated’ materials like gametes or tissue samples, and (to a lesser extent) cadavers and other mortal remains. Wall’s discussion, however, ranges widely across jurisprudential and philosophical issues concerning our relation to our bodies and our rights in them. His central, plausible contention is that body rights, though a kind of ownership right, need not and often should not be protected by property law. Rather, in many cases, rights in body parts should be protected by a legal regime that more closely resembles that governing our rights over confidential information.
Wall proceeds by drawing our attention to a number of interlinked distinctions. First, and most helpfully, Wall goes to great pains to distinguish ownership as a generic right to exclude, from property as a particular sort of legal regime for specifying and protecting that right. On the dominant Honorean view, to have property is to have a relation to a thing with some, but perhaps not all, of a set of legal features or incidences; including: rights to exclude, rights to use, rights to profit; certain sorts of remedies if these rights are violated, responsibilities when they are not, and so forth. (Honore 1961) Whatever it takes for a set of rights to have ‘enough’ of these features to count as a kind of property right, it is plausible that the broader set of rights with some smaller (but non-zero) number of these features constitutes a morally interesting category as well. This thinner sort of ‘ownership’ is interesting, not least, because it may be where we should slot in rights in body parts and bodily materials, if (like Wall and many others) we are uncomfortable regarding our moral and legal relation with our bodies entirely on the model of our relation with our ordinary property.
There is, then, something promising about Wall’s general strategy. However, the way he executes it is puzzling, in places. Property, Wall argues, is appropriate only for protecting rights that are in a certain sense contingent, rather than necessary, with respect to the rights-holder. Ultimately he explicates this contingency in terms of the thought that entitlements in property are essentially those that “enable […] choices and preferences that can exist independently of the rights-holder” (2015, 126). This criteria, however, is hard to understand. Can any of my choices and preferences exist independently of me? It is hard to see how; if I did not exist I could not prefer or choose anything. Perhaps the idea, instead, is that only the content of my preferences that must be in some sense independent of me; so that property rights are those that protect preferences that are not self-regarding. That distinction makes more sense, but it does not seem to mark a difference relevant to the demarcation of property rights from other sorts of rights. To borrow Wall’s own example, against his purposes: the preference protected by a wine-collector’s property in his wine is, precisely, his preference that he and not others have that wine in his collection.
Still, Wall does seem to be on to something that is intuitively right here: going back to Kant, the thought that there is something distinctively ‘contingent’ about property rights has seemed like a promising one. Perhaps, then, these are mere problems of formulation. Less promising, it seems to me, is the substantive principle Wall offers for determining when our rights in our bodily materials are ‘contingent’, and thus suitable subjects for propertization. Here Wall takes us back to the basis of our rights in our ordinary, attached body parts. He builds here on the fashionable thought that our experience of the world or ‘subjectivity’ is necessarily embodied, drawing on work by Maurice Merleau-Ponty to distinguish the phenomenological relation we bear to paradigm body parts from the relations we can bear to external objects. (Merleau-Ponty 2003). The body, Wall suggests, is ‘for-itself’; not experienced as an inert separated object (what it is ‘in itself’, irrespective of how we experience it), but rather as the surface where self meets world in action and perception.
But this sort of phenomenological account of why we have rights in paradigm body parts faces serious, and possibly insuperable, problems. Felt embodiment is clearly no necessary condition for body ownership – if all goes well, I may never feel any embodiment in my peritoneum, or my bone marrow, or in many other internal organs. The thought that phenomenological properties are sufficient for bodily status appears more plausible at first sight. But even that is hard to make out, on further reflection. Merleau-Ponty himself famously argued that our sense of embodiment can extend to tools in transitory use; a cane or a pen can present as part of the embodied, oriented ‘for-itself’ to fluent performance in the world. Still, for moral and legal purposes, it seems hard to deny that a pen remains a distinct, non-bodily object: to touch or damage it is not to touch or damage me.
Wall’s extension of the phenomenological account to separated bodily items raises these problems particularly sharply. A bit of bodily material is, he says, ‘for-itself’ (read: part of the embodied self) when it remains “directed to a current or possible task” (2015, 61). If I have brought only one pen to the coffee shop; then even when I set it down it for a moment, it remains directed to the task of making notes in my book. Yet, surely, it is in that case mere property, not deserving of the special protection we give to items that are properly ‘bodily’. Damaging it is mere vandalism, not assault and battery. But if recruiting a previously ‘felt’ item into an ongoing task does not produce a ‘bodily’ right in this case, why would it in contentious cases regarding bodily materials? It is not at all clear to me, then, that the phenomenological tradition Wall appeals to has the resources to demarcate between relevantly contingent and non-contingent rights in separated body parts.
These objections raise real concerns, I think, about some of the philosophical substructure of the book. They do not, however, take away from Wall’s many rich and interesting observations about case law regarding bodily materials or the utility and interest of the structural distinctions he draws between property and privacy as two distinct paradigms of ownership. I recommend this book to philosophers and bioethicist looking for a subtle and informative discussion of recent and prospective legal developments regarding ownership of bodily materials.
Department of Philosophy and Kennedy Institute of Ethics, Georgetown University
Honore, A. M. 1961. “Ownership.” In Oxford Essays in Jurisprudence, ed. A. G. Guest. London: Oxford University Press, 107–47.
Merleau-Ponty, Maurice. 2003. Phenomenology of Perception. ed. M C Smith (tr). Oxford: Routledge.
Wall, Jesse. 2015. Being and Owning: The Body, Bodily Material, and the Law. Oxford: Oxford University Press.