Property in the Body: Feminist Perspectives
Property in the Body: Feminist Perspectives
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| ISBN-13: | 9781108207188 |
|---|---|
| Publisher: | Cambridge University Press |
| Publication date: | 06/09/2017 |
| Series: | Cambridge Bioethics and Law , #39 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| File size: | 3 MB |
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Cambridge University Press
9780521867924 - Property in the Body: Feminist Perspectives - by Donna L. Dickenson
Excerpt
1 Do We All Have ‘Feminised’ Bodies Now?
It is widely feared that we no longer possess a property in our own bodies. Instead, it has been argued, ‘what we are witnessing is nothing less than a new gold rush, and the territory is the human body’.1 Tangible rights in human tissue and intangible rights in the human genome have been said to be the subject of a new enclosure movement by researchers, biotechnology corporations and governments.2 Commodification of the body, broadly construed to include private property rights by third parties in tissue, DNA samples, umbilical cord blood and other substances derived from individuals’ bodies, has caused great, if sometimes belated, outrage among patients’ rights organisations, academic commentators, journalists and the general public, in both the developing and the developed worlds.3
An eBay auction for a healthy human kidney attracted global bids up to US$5.75 billion. The leg bones of the late broadcaster Alistair Cooke were stolen by a criminal ring as his body lay in a New York funeral home, and subsequently sold, like those of an estimated 1,800 others, for processing into dentalimplants. Advertisements regularly circulate in US college newspapers, offering egg ‘donors’ amounts varying between US$5,000–$50,000,4 depending on ‘desirability’: blond, tall, athletic and musical donors command the higher prices, at considerable risk to themselves. One report documented the taking of seventy eggs at one time from a ‘donor’ who nearly died in the process;5 another, the international trade for beauty treatments of fetuses from Ukrainian women paid £100 to have an abortion.6 The commodification of genetic research, it has been alleged, extends beyond the issues of patenting gene sequences or harvesting DNA, to the way in which the very agenda of research is dictated by corporate requirements.7 If this is true, the scientific method has itself become a commodity. Even more broadly, both donors and recipients can be seen to become part of the ‘phenomenology of exchange’.8
As in the old agricultural enclosure movement, ‘things that were formerly thought to be uncommodifiable, essentially common or outside the market altogether are being turned into private possessions under a new kind of property regime’.9 Throughout the world a series of legal cases, statutes and patenting conventions such as the European Biotechnology Directive of 1998, appear to have generated an unstoppable momentum towards the transfer of rights over the body and its component parts from the individual ‘owner’ to others: for example, the Moore case, in which an immortal cell line was created from the T-cells of a patient who was held to have no further rights in that cell line.10
Most people are surprised and somewhat shocked when they learn that Moore apparently did not ‘own’ his body. Legal doctrines under both civil and common law systems have left us with something of a vacuum. In fact, we do not own our bodies in law: they are not the subject of property rights in any conventional sense, although traditionally they have been shielded to some extent by what James W. Harris calls ‘protected non-property holdings’.11Thus while corpses cannot be owned at common law, those charged with their disposal – hospitals, families and public or religious authorities – are restricted by certain duties and endowed with certain powers, although these are not ownership privileges and powers. Once tissue is separated from the living body, however, the common law generally assumes either that it has been abandoned by its original ‘owner’, or that it is and was always res nullius, no one’s thing, belonging to no one when removed.12 Under previous circumstances, the tissue would have been presumed to have been removed because it was diseased, and thus of no further value to the person from whom it was extracted. Civil law systems such as that of France typically view the body as une chose hors commerce, or res extra commercium: a thing not subject to contract or exchange.13 Similarly, under French law, tissue removed during a procedure is considered to be abandoned, res derelictae. In both cases, contracts in bodily tissue and materials are difficult or impossible to enforce, although for different reasons. In both systems, patients have no further property rights in their tissue once an informed consent to its extraction or donation has been given.14
But why should it be so widely assumed that we do own our bodies? Why does it matter so much? A large part of what disturbs people about commodification of the body appears to be the way in which it transforms us into objects of property-holding, rather than active human subjects. (For the time being, I will not distinguish between objectification and commodification; chapter 2, however, will tease out some important differences between these two core concepts.) In the French context, this concern is clearly stated in several opinions of the national ethics commission, which has consistently declared that human dignity and subjectivity are incompatible with selling oneself or parts of oneself as objects. ‘Trading persons, or parts of persons, or elements of persons in the market place, would turn subjects into objects, that is, subvert the foundations of the social order. Preserving the freedom of subjects involves maintaining (so to speak) all parts and bits of subjects within the realm of persons.’15 The sociologist Dominique Memmi has characterised the French national ethics committee’s response to commodification of the body or genome as grounded in fear of a threat ‘to the totality of the subject . . . of an intrusion into what appears to be the most secret and intimate area, that of the body or gene’.16 In the common law context, the emphasis on human dignity is less pronounced and a libertarian rights-based discourse more frequent.
Although some Anglo-American commentators argue that our rights as moral agents and human subjects actually require us to have the free right of disposal over our bodies,17 the common law posits that something can be either a person or an object – but not both – and that only objects can be regulated by property-holding. The implication is clear: to the extent that persons’ body parts can be regulated by property-holding, those body parts are objects, or things. If we are embodied persons, then to some extent we become objects too. The question is to what extent.
Bodies, persons and things
This core distinction between persons and things is as much philosophical as legal. It has its origins in Kant:
Man cannot dispose over himself because he is not a thing; he is not his own property; to say that he is would be self-contradictory; for insofar as he is a person he is a Subject in whom the ownership of things can be vested, and if he were his own property he would be a thing over which he could have ownership. But a person cannot be a property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property.18
Human tissue and human genetic material, however, fall between the two stools, containing elements of both person and thing, subject and object. It may well be that our discomfort about commodification of human tissue and genetic material reflects a sense that recent developments take us nearer to the object end of the spectrum. In the Kantian formulation, this shift radically undermines our very humanity. The relationship between the body and the person is a constant question which will recur throughout this book, with the insights gained from the intervening chapters summarised and tested in the Afterword; here I merely give some introductory thoughts.
Biotechnology has made the entire notion of the body much more fluid. On the one hand, bodily functions can be replicated or enhanced by objects originally extraneous to the subject, machines such as ventilators and pacemakers, as well as by substances derived from human bodies but through industrial processes, such as factor Ⅷ blood-clotting products. On the other, human biomaterials extracted from the body enter into research and commerce as objects – to a greater extent in more commodified economies such as the USA, but not only there. The second development is the primary focus of my attention, but the first has also drawn feminist comment, for example in Donna Haraway’s metaphors about cyborgs.19 It becomes much more difficult to insist that the body simply is the person when tissues from the body are no longer physically joined to the person, or when the body is a conglomerate of extraneous tissues and my own. Feminist theory again shows its utility in helping us to frame the current debate over the ‘new enclosures’ more clearly. Bioethics, by contrast, currently lacks sustained reflection on the relationship between persons and bodies, including body parts and tissues.20
New biotechnologies disaggregate the body, robbing it of its organic unity and encouraging the view of body parts as separate components which do not sum to anything more than their compilation.21 As Maria Marzano-Parisoli has written in her excellent Penser le corps, ‘In addition to the natural body and its parts, there now exists a series of artificially produced bodily elements which make the distinction between natural body and artificial bodymuch harder to pin down.’22 The patenting of genetic sequences, considered in chapter 5, provides a clear and, to many, disturbing illustration of the way in which elements extracted from the body take on a separate existence from that of the original subject. Another telling and troublesome example is that of hand and face transplants, in which the bodily identity of the donor is a continual reminder to the recipient of another subject’s integration into one’s own body.23
When body and subject are equated, the body is inviolable because it is identified with the subject, which makes violation not merely philosophically impermissible but jurisprudentially impossible:24the body is the substratum of the person, and thus innate to the subject of law. In other words, there can be no distinction between the person as rights-holding subject and the body as the object of rights. If the subject is sovereign, however, there is no necessary logical link between these two propositions. We might want to maintain that the sovereign individual should have the right to dispose of her body as she wishes, and indeed that the right to do so is an important cause for feminists to reclaim: hence the growing literature supporting prostitutes’ rights over their own bodies, in a neo-liberal style of argument.25 I do not myself accept that argument, but I do want to draw attention to the illicit slide from the assertion that the body is the subject to the claim that the subject does not have the right to dispose of her body as she sees fit. In the extreme cases of slavery or of the sale of life-sustaining organs, we can see the contradiction between disposing of one’s body, in the name of free action as a subject, and the subsequent extinguishing of the subject in whose name this freedom is supposed to operate. A contract of slavery, for example, is logically invalid because it extinguishes the legal existence of one party to the contract. It is therefore consistent in philosophical and legal terms to bar such forms of alienation of the body by sale or other means. The more difficult cases concern disposing of parts of the body which do not threaten the continued existence of the subject.
Again, Kant is often cited as the locus of the assertion that we are barred from using our bodies as mere tools, since that would entail treating ourselves as mere means – although to our own ends rather than those of another subject. While Kant clearly states that we are not authorised to sell any parts of our bodies, he seems to make exceptions for non-vital elements such as hair, although he is uneasy even about that. In other situations, for example in the permissible amputation of a diseased foot, Kant does appear to draw the dualistic distinction between body as object and moral person as subject, so that we are entitled to ‘use’ the body in such a way as to preserve the person. (I have put ‘use’ in inverted commas because amputating a diseased foot does not seem to be ‘using’ the body as a tool in the same way as selling a part of the body, even selling a body part in order to keep body and soul together.)
So although Kant at first denies that the person can be separated from the body, or that the body can be treated as a thing without injuring the person, he makes exceptions for certain parts of the body, particularly those which are not vital to life. One might think that DNA swabs used in genetic and genomic analysis, or tissue slides containing microscopic samples, would be among those modern-day exceptions that could be justified on a Kantian basis. Oddly, however, it seems that these forms of tissue extraction have often occasioned the strongest protest. In chapter 8 I describe a case example from Tonga, where there was deep public resistance to an Australian biotechnology firm’s agreement with the government to collect tissue samples for the purpose of genomic research into diabetes. As the director of the successful protest group put it, ‘They came for sandalwood, now the b . . . s are after our genes.’26
The feminised body
There is widespread dismay, in both the global South and the wealthy countries, at the notion that by losing a property in our bodies, we lose a part of our individual identity. But why does this phenomenon seem so novel? After all, women’s bodies have been subject to various forms of property-holding over many centuries and in many societies. In this book I want to argue that what we are witnessing is fear of the feminisation of property in the body. The ‘new enclosures’ of the genetic commons or of forms of human tissue threaten to extend the objectification and commodification of the body to both sexes. Everyone has a ‘female’ body now, or, more properly, a feminised body: while men do not have bodies that are biologically female, both male and female bodies are now subject to the objectification that was previously largely confined to women’s experience.27
That, at least, is the presumption underlying much current discourse and debate over the ethics, law and politics of human tissue, particularly in the areas of genetic patenting and biobanks, as I shall demonstrate in chapters 5 and 6. In those chapters, however, I will also suggest another gender dimension – or perhaps a variant of the same one. Fear of feminisation and the sense of losing a property in the body are most pronounced where both men and women are the ‘sources’ of tissue, as in genetic patenting and biobanking. The taking of solely female tissue does not provoke such widespread coverage and concern. In other words, objectification and commodification of the body continue to be perceived as more ‘normal’ for women’s bodies; the only difference is that what is objectified and commodified now takes new and disturbing forms, as in the ‘harvesting’ of ova, the subject of chapter 3, or the private banking of umbilical cord blood, treated in chapter 4. But even though those procedures are more invasive and far riskier than the processes involved in genetic patenting and biobanking, the comparatively small affronts involved in patenting and biobanking technologies cause greater public concern.
The crux of my claim is that commodification of human tissue and the human genome affects both sexes, and thus appears to feminise men, by threatening to reduce both men and women to the role of objects – the physical matter on which medical interventions, patenting or experimentation takes place, and which serves as the raw material from which added value can be extracted. (This, too, is a feminine role, as feminist theorists such as Donna Haraway and Sandra Harding have pointed out.)28 Although some bioethicists and sociologists view the body as a tabula rasaon which the subject can now inscribe whatever identity he wills,29 thanks to modern science, here I shall be arguing the opposite position. What is threatening about commodification of the body, judging from a widely accepted discourse, is that it reduces both sexes to the condition of objects. Whereas in many countries the extension of abortion and contraception rights in the 1960s gave women increasing control over their bodies, elevating them to the status of subjects which only men had previously enjoyed, the new enclosures throw the process into reverse. But whereas the new reproductive rights functioned mainly to raise women to the level of autonomy men had enjoyed – despite some commentators’ view that what happened in the 1960s was that everyone gained new powers over their own bodies30 – the ‘new enclosures’ threaten both sexes. They do not threaten both sexes equally: female tissue is more valuable, as I shall illustrate in chapters 3 and 4. But because they also threaten men, they provoke a more pointed debate.
In some cases, as I have noted, the feminisation of property in the body takes specific forms that can only apply to women: for example, the developing global trade in human ova.31 The forms of corporeal commodification which only affect women are under-researched and little noticed, so that part of the task of this book is to draw attention to them. (Indeed, I will spend more time on those issues than on the questions around biobanking and genetic patenting, which already enjoy far more extensive coverage in the literature.) I will also point out in chapter 8 that commodification has particular ramifications for people in the global South, particularly indigenous peoples; it may well be viewed by those peoples as part of disempowering, and arguably feminising, neo-colonialism. Since the ‘new enclosures’ are global in scale, they require some attempt at a global analysis.32
It might seem odd for me to advocate a property approach grounded in feminist reasoning, if property is about objects, and if women’s status has hovered uncomfortably between that of a subject and that of an object. However, I shall shortly illustrate how the ‘bundle’ concept of property concerns relationships, obviously among people, of exclusion and inclusion: common-law jurisprudence typically views property as a set of relationships between persons, not as a thing in itself.33 This emphasis on property as relationship is entirely consistent with feminist theory, which has frequently foregrounded relationships and relatedness. Chapter 2 has more to say about this contention.
My argument could lead in several directions, and I want to begin by making it clear which roads I have not taken. As Robert Frost says, the road not travelled by can make all the difference. Here are some of the perilous legal and philosophical roads not taken in this book.
1. I certainly do not wish to argue that we should be indifferent to the commodification of the body, or that because women have had to suffer the status of objects of property-holding, men should too. On the contrary, I argue that by and large we should oppose commodification and objectification of the body. By examining the insights offered by feminist theory, which has been sensitive to the myriad ways in which property in female bodies has manifested itself, we may learn more nuanced and historically wise ways of doing so. What appears a new phenomenon, the commodification of human tissue and genetic materials, is, like many other phenomena in bioethics, not really so new as all that. Just because the technologies are new does not mean that the underlying ethical problems and political phenomena are utterly beyond our previous experience. The commodification of the human body has already been compared to the agricultural enclosures of the eighteenth and early nineteenth centuries; feminisation of the body is another comparison, invoking another set of historical referents, some of which I explored in my earlier Property, Women and Politics.34 If we can understand this history, perhaps we are not doomed to repeat it.
© Cambridge University Press
Table of Contents
1. Do we all have feminised bodies now?; 2. Commodification, contract and labour; 3. The lady vanishes: eggs for reproduction and research; 4. Surrogacy: can babies be property?; 5. Umbilical cord blood: seizing surplus value; 6. Biobanks and databases: our bodies, but not ourselves; 7. The gender politics of genetic patenting; 8. Reclaiming the biomedical commons.What People are Saying About This
"It is rare to find a text that offers a specifically feminist approach to bioethical problems that are not commonly taken as gendered...this book is to be recommended for an illuminating attempt at philosophical and legal rigor applied to cutting edge ethical issues."
Jackie L. Scully, Metapsychology Online
Dickenson is essential reading, making one aware that ensuring donors’ informed consent to the procedures they undergo hardly touches the complexity of the issues involved. Instead, we have to ask whether donors have a rightful interest in how the bodily tissues they donated are later used in research programs and also consider society’s legitimate interest in who benefits from the sale of the biotechnological products that may result." - SIGNS