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From time to time, one may consider who really owns or should own items that develop in nature. For example, should someone be able to own and sell water, flowers, air (or oxygen), or even land for that matter? Would the answer depend on where the items are located and whose labour and resources are applied to make them available for sale or at least for distribution? Not surprisingly, there are arguments that can be made for or against the appropriateness of property rights in natural resources. However, consider for a moment the parts of a human body. What could be more natural than that? More importantly, who owns those human parts?
Piljak Estate v. Abraham, 2014 ONSC 2893 (CanLII) is a case in which the estate and family of Snezana Piljak, who died of colorectal cancer on August 14, 2011, claimed that Dr. Abraham (amongst other professionals) was negligent in his conduct of a May 2008 colonoscopy. They also claimed that he should have detected a legion indicative of the cancer that eventually caused her death.
The defendants asked the court to order that genetic testing be done on the tissue block of liver which was preserved and possessed by Sunnybrook Hospital. However, the relevant rule of civil procedure upon which they relied permits only “the inspection of real or personal property”. Thus, the court had to consider whether a tissue sample taken from a human being for the purpose of diagnostic testing is “personal property”.
In the case, “Property” was defined as “a thing belonging to someone”…. “over which the rights of possession, use and enjoyment are exercised”. Furthermore, the court was reminded that “Personal property” or “personalty” is that class of property dealing with rights in a “chattel” or any “movable or intangible thing that is subject to ownership and not classified as real property.”
The issue has never been dealt with directly by a Canadian court and American authorities were presented by the defendants. The court accepted these authorities which state that it “is unquestionably true that patients own their tissue before it is excised.” It also accepted that once diagnostic tissue is excised, it becomes part of the medical record and therefore both possession and ownership are transferred to the institution. As part of the medical record, the diagnostic tissue is owned by the institution or hospital. At best, the patient has reasonable access to the tissue but does not own it.
In the end, although the motion failed for several other reasons, the court concluded that the relevant Rule of civil procedure may be used to permit either party to inspect and test human tissue initially excised for diagnostic purposes.
Aside from the analysis performed by the court, its conclusion may actually be a safe one for another reason: if the tissue were found to be “owned” by the deceased patient, then it would arguably become part of the estate and be passed to future generation(s) according to the law of succession. This issue is being explored where genetic and reproductive materials, such as human sperm and eggs, are being preserved for future fertility initiatives.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
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