Ways to Protect Bodily Rights and Integrity without Relying Solely on Privacy Rights

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Privacy and the Law
The need to respect individual autonomy is increasingly being questioned in today’s society, especially when it comes to matters of who owns the body and the extent to which the right to body ownership should be protected. Since society respects individual autonomy, the legal system is also expected to respect individual autonomy and accord property rights to individuals’ bodies. Yet, the question of whether individuals have recognizable rights to their own bodies remains unclear and has raised serious debates. There are also questions of when bodily rights end; do they end in death? As Smolensky (p.763) shares, most legal rules indicate that the dead have no rights, although the decisions made by the dead are respected even after their death, such as organ donation. However, Calvert (p. 134) indicates that there is privacy in death as well and this right to privacy should be protected to not only protect the dead but also their immediate family. A closer look at the protection of bodily rights and integrity shows that privacy rights are central to this protection. This further raises the question of whether there are other ways to protect bodily rights and integrity without relying solely on privacy rights. This paper will analyze and address some of these questions using the McFall v. Shimp legal case as a basis. It will also establish some of the ethical and legal issues that have been raised by the McFall v. Shimp case.
McFall v. Shimp: A Brief Overview
McFall, the plaintiff, had a fatal, rare bone marrow disease and needed a bone marrow transplant to avoid his imminent death. Shimp, who was the defendant and McFall’s cousin, had a highly compatible bone marrow that could save McFall’s life. However, Shimp refused to complete the compatibility test and proceed with donating his bone marrow to save McFall’s life (Ingram, p.2). McFall then sued Shimp for an injunction. He wanted the court to order Shimp to complete the test and donate his bone marrow.
However, the court ruled against him and indicated there were no precedents to support the court in granting the injunction. The court ruled in favor of respect for an individual’s bodily autonomy and sanctity (Ingram, p.3,1). The court further pointed out that the decision to donate the bone marrow was a moral obligation held by the defendant and the court could not compel him to donate his bone marrow. The court believed that compelling Shimp to donate his bone marrow “would change every concept and principle upon which our society is founded (Huffman, p.409).” This case separated legal obligations from moral ones and supported an individual’s right to bodily integrity. This case indicates that individuals have body ownership rights and they have a right to ensure their bodily security.
Bodily Property Rights
The question of whether the human body can be owned has raised debate over the years. As Puchta (p.299) reveals, it has always been assumed that the human body cannot be owned because the common law upholds the no property rule when it comes to the human body. Yet, various court case rulings in the history of body ownership have challenged the no property rule and made exceptions. For instance, based on McFall v. Shimp, individuals have a legal right to choose what they want to do with their bodies. They can accept or refuse to donate parts of their body, regardless of the outcome of their decision. In this case, the right to body ownership superseded the right to life (Ingram, p.3). The ruling in McFall v. Shimp did not infringe on an individual's right to bodily security, indicating the need to protect an individual’s body from harm even at the expense of the loss of life of another individual. As such, Shimp had recognizable property rights in his body, which is why the court could not force him to donate his bone marrow to McFall. As Warren and Brandeis (p.1) indicate, the principle of guaranteeing full property and personal protection is an old principle that has been redefined over time to determine the extent of personal and property protection. Puchta (p.300) reveals that courts are constantly redefining and re-evaluating the common law concerning the ownership of the body, body parts, and bodily materials due to the changes in technology and medical science. As such, it is important to determine whether individuals have recognizable property rights to their bodies based on the current law.
According to Wall (p.783), establishing whether individuals have recognizable property rights in their bodies or body parts requires an evaluation of the ownership rights that need to be recognized by the law. To this end, he suggests that for ownership of the body to hold, the individual must have the right to possess, manage, use, and transfer the body, body part, or biological materials (p.786). These rights/entitlements are recognized by the law and as such, anything with these rights can be recognized as property. Individuals possess, manage, use, and can transfer their body or body parts. For instance, an individual can transfer their entire body to medical researchers after death. They can also transfer their body parts or biological materials, such as tissue samples and blood, to researchers or organ recipients. In such instances, the individuals are considered to have recognizable property rights in their own bodies.
Protection of Bodily Integrity
In protecting bodily integrity, there has been a heavy reliance on privacy rights. This is because individual autonomy, self-determination, and dignity are viewed as a constitutional right of privacy (Glancy, 24). It gives individuals the freedom to choose control over who has access to them, their information, and their life and all it contains. However, the right to privacy does not always guarantee protection. According to Solove (p.8), there is a lack of clarity in the definition and recognition of privacy interests, which makes it difficult to protect privacy. This raises the question of why we rely on privacy rights to protect bodily integrity when there is so little clarity about privacy rights. Are privacy rights the only remedy for protecting bodily integrity? Rao (p.360) indicates that in protecting bodily integrity, individual autonomy can be granted either through the right to privacy or by viewing the body as property. Both the property and privacy approaches help to ensure individual autonomy by protecting the right of an individual to own their body and exclude it from being accessed by others without the individual’s consent. As seen in McFall v. Shimp, an individual has a right to their body and body parts and this right may not be infringed upon, even when it means saving the life of another individual (Ingram, p.3). This ensures that others are excluded from accessing an individual’s body without consent from the individual. To better understand how bodily integrity can be protected without solely relying on the privacy approach, this paper analyzes property approaches as an alternative.
Protection of Bodily Integrity by Viewing the Body as Property
The property approach involves viewing the body as property. When the body is viewed as a piece of property, then the owner of the body has a right over the body and this protects bodily integrity. According to Rao (p.368), when the body is viewed as property, it means that the body or body parts cannot be used to benefit the public unless the individual (owner of the body) has been justly compensated or voluntarily allows...