International Law Research; Vol. 2, No. 1; 2013
ISSN 1927-5234 E-ISSN 1927-5242
Published by Canadian Center of Science and Education
Commodifying Human Life: The Numerus Clausus Principle and Unconventional Property Rights
Joshua K. Wasylciw1 amp; Scott Nicholas Romaniuk2 1 Faculty of Law, University of Calgary, Calgary, Canada
2 Department of Politics and International Relations, School of Social Sciences, University of Aberdeen, Aberdeen, UK
Correspondence: Scott Nicholas Romaniuk, Department of Politics and International Relations, School of Social Sciences, University of Aberdeen, Aberdeen, AB24 3QY, UK. Tel: 44-122-427-2726. E-mail: scott.n.romaniuk.11@aberdeen.ac.uk
Received: November 26, 2012 Accepted: December 11, 2012 Online Published: July 5, 2013 doi:10.5539/ilr.v2n1p102 URL: http://dx.doi.org/10.5539/ilr.v2n1p102
Abstract
Throughout the common law world the notion that classes of property rights are closed in number is a prevailing concept across property regimes. This closed in number, or numerus clausus, principle has served property rights well. This principle has prevented messy property arrangements from arising – such as an agreement between two people where one owns a watch on Tuesdays and Thursdays, and the other owns it the rest of the week. However, as technology evolves, property is created in items that the legislature never contemplated. In this article we explore the seminal Canadian case of JCM v ANA and examine how numerus clausus and property no longer remain sufficient tools for delineating individualrsquo;s rights to tangible goods. Whether the sperm straws in question in JCM are property or not, and whether numerus clausus recognizes a category of property rights where human tissues or fluids capable of providing life or not, are contentious issues, not easily resolved. The argument is made that the numerus clausus principle is of marginal use considering such forms of unconventional property as human gametes. This is supported through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application.
Keywords: Gametes, human embryos, law of property, legislature, optimal standardization
Introduction
In their article “Optimal Standardization in the Law of Property: The Numerus Clausus Principle” Thomas Merrill and Henry Smith assert that the numerus clausus principle is a useful, if even imperfect, tool for striking a balance between the complete customization of forms of property and the standardization of property to one single form, such as the fee simple. (Note 1) Their argument is supported by an examination of how the measurement of cost externalities takes place using the useful paradigm of one hundred individuals, all of whom own one hundred different watches, and the ensuing transfer of rights to the watches between others. (Note 2) While this argument presents itself with considerable appeal, and one for traditional types of property, it happens to encounter problems when new types of property are conceived.
This is the case when taking into consideration the straws of sperm, which were at issue in the case of JCM v ANA. (Note 3) Accordingly, the argument presented here is that the numerus clausus principle as advanced by Merrill and Smith, is not as useful as they propose, particularly when taking into consideration such forms of unconventional property as human gametes. We establish this line of argumentation and support through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application.
Literature Review
While there has been a considerable amount of literature written on the topics of when life begins, and when life ends, the academic literature available on sperm as property is less prolific, however a surprisingly large among has still been written on the subject. One of the early authors concerned with this topic was Bonnie Steinbock. Writing over a decade ago, Steinbock argued, and Madam Justice Russell quoted in her decision in JCM v ANA that:
To characterise something as property suggests that certain things may be done with ithellip; If there are entities though ought not to be treated in these ways, if, that is, there are good moral reasons why they should not be treated in these ways, then they should not be considered as property. (Note 4)
While Madam Justice Russell expressed sympathy with the argument, she eventually rejected this argument, and the arguments of two other academics citing that “the court is ill equipped to handle moral and philosophical arguments.” (Note 5)
The second author that Madam Justice considered was Ernest Waintraub. Writing over a decade after Steinbock, Waintraub argued that previous (American) courts have taken the position that frozen embryos and other zygote and gametes are neither property nor persons but that they occupy an “interim category” of tangible items somewhere between life forms and property. (Note 6) As a result of this conclusion Waintraub supports the decision reached in Hech
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