Skin and Bone
1 February 2003
Rum things, human bodies. We've all got one (we have little choice in the matter of course) but what we can and cannot do with and within them keeps lawyers amused for hours. From the monetary value of the middle toenail on your left foot, to the penalty for exposing some or all of your bits in public, to what you can legally do with a corpse, the law is both brilliant and bonkers in this area. As Lawyer 2B discovers, there is more to the body than meets the eye.
"I seem to have acted on a collection of oddball cases," admits Michael Hales, a litigation partner at City firm Nabarro Nathanson. Late last year, Hales' client, Professor Gunter von Hagens of Body World fame, hit the headlines when he staged the UK's first public autopsy since the 1830s.
Hales started advising the team behind the exhibition of plastinated corpses when it arrived in the UK last year.
"We were involved in setting up an English corporate structure," he recalls. "But then the Department of Health said we needed a licence to legally proceed. So we argued that the plastinating process was not covered by the Anatomy Act [because] plastination had not existed when the act was written."
Hales' team won and the Body World exhibition went on to become the country's most popular attraction. But around about the same time, the Department of Health started to push through measures that, if they become law, will effectively outlaw the presence of plastinated bodies in this country.
"So the professor decided to stage a public autopsy when the exhibition was up and running," says Hales.
Next the legal team had to enter into negotiations with the coroner's office, the police, the building's landlords and Channel 4, which was filming the event. It was agreed that plain-clothed police officers would be present because if it could be proved that the professor had staged an anatomical examination rather than a post mortem, then he could be successfully prosecuted for not having the appropriate licence.
While Hales still does not know what the police plan to do, he hopes they will not take any action.
"It is a human right to have freedom of expression and people should be at liberty to go if they want. After all, you don't have to if you don't want to."
Naked and Legal
Vincent Bethell first started protesting about his right to be naked in public in 1998, when he stripped off at Piccadilly Circus in central London. Since then he has staged approximately 20 naked protests, has been charged for around half of them and has been convicted seven times, including one five-month stretch in Brixton prison.
"Technically, I'd say that non-sexual public nakedness is not actually illegal and that the unclothed body in public is only criminalised due to an abuse of law where Acts of Parliament are being applied to situations that they were not designed for," says Bethell.
The most common charge for appearing naked in public is under Section 5 of the Public Order Act 1986, which covers "threatening, abusive, insulting or disorderly words or behaviour to cause harassment, alarm or distress".
But Bethell believes it is inappropriate for the act to be applied to the naked human body. "It's very clear that someone who is peacefully naked in a public place is not being abusive, insulting or threatening," he states firmly.
Bethell's most significant protest took place in August 2000, when he removed his clothes in Kensington Gardens and vowed to remain naked until the law was changed.
"I was initially charged with six Section 5 charges of the Public Order Act 1986, but all six charges were converted to the common law charge of causing a public nuisance," he recalls. After five months in jail, Bethell appeared naked for his trial at Southwark Crown Court, where the jury came to a unanimous not guilty verdict.
"I'd always wanted a jury trial, but was never allowed to have one," he says. "Previously to the jury verdict, I'd always been found guilty at the magistrates' court, but this has changed. On 1 July 2001 I was arrested [with another activist] at a naked protest and we were both found not guilty at trial at Bow Street Magistrates'."
One of the driving aims behind Bethell's campaign is to "enhance self-awareness so that people can be more human." He adds: "Discrimination towards the naked visual identity of the human race is discrimination towards a genetically determined and unintentional appearance. I describe such discrimination towards naked skin as 'same-skin racism', which means showing disgust towards yourself or towards the visual appearance of other humans.
"The police will only cease arresting people when they're forced to admit that arresting naked people in public is due to their individual prejudices, and this is unlawful."
Artists have used the human body as a source of inspiration for centuries, but need to be careful about exactly how they use it, otherwise they could find themselves on the wrong side of the law.
For example, just last November, London's Southwark Council's licensing committee imposed a last-minute ban on a show by the Italian-born controversial performance artist Franko B. As previous shows had seen Franko B spilling blood from fresh wounds on his own body across a white canvas, the council refused to grant an occasional entertainment licence because of the show's "offensive nature".
Only a month earlier, Plymouth's coroners were troubled by the lawful ownership of an embalmed body of a tramp that had been found hidden in the studio of a recently deceased artist.
According to reports, the body of 72-year-old Edwin MacKenzie was found in a chest of drawers nearly 18 years after his death. MacKenzie's body had been embalmed by the artist, Robert Lenkiewicz, and had appeared in some of his work; but following Lenkiewicz's death, the local authorities were unsure who had lawfully possessed the body as the tramp had no living relatives and had left no will.
Lenkiewicz caused a storm in 1984 when he embalmed the body despite Plymouth City Council's demands that the body should be properly buried.
Health officials reportedly once tried to remove the body from the artist's studio in the mid-1980s, but only found Lenkiewicz hidden inside a makeshift coffin.
Plymouth and South Devon Coroner Nigel Meadows told an inquest it was an "interesting question" whether the artist had acted legally. "Strictly speaking he should have sought the assistance of the environmental health authority to see if what he was doing was appropriate," he said.
We have had Dolly the sheep cloned from an adult cell and now it has been claimed that the first cloned humans have been born. Whether or not the recent announcement by the Raelian sect is true, the prospect of replicating some or all of the human body is becoming increasingly plausible. So what kinds of issues will this raise for lawyers?
While human reproductive cloning is banned in the UK, the Government has taken a remarkably pragmatic approach to other issues, such as stem cell research, says Dr Peter Wood, a solicitor in Barlow Lyde & Gilbert's corporate department.
"I think it's inevitable that a lot of this technology will eventually succeed," he adds. "The big question is how to regulate the way it's used."
Dolly, the first mammal to be cloned from an adult cell, was created by a technique called nuclear transfer, which involves taking the nucleus from the cell of the individual being cloned and fusing it with part of a donated egg, resulting in a cloned organism.
Wood says nuclear transfer cloning causes legal problems because it does not actually involve the fertilisation process (where a sperm meets an egg), meaning that organisms produced are not covered by the Human Fertilisation and Embryology Act 1990, which outlaws unlicensed human cloning. "It's not unusual for such legal loopholes to be exposed. The law is constantly struggling to keep up with science, which makes this a fascinating area to work in," he says.
Since Clonaid - the group of sci-entists linked to the Rae-lian sect - announced the as yet unproved birth of baby Eve, some world leaders have called for a global ban on human reproductive cloning to be submitted to the UN.
While Wood agrees with this, he thinks there should be a more open debate on the many possibilities that stem cell cloning might offer.
"A total ban on all types of human reproductive cloning would not only harm the UK's biotech industry, but more importantly, it could thwart some very promising potential new therapies
Owning your body?
If you are planning to get your leg amputated and would like to keep your limb as a gruesome souvenir, be sure to tell the hospital, as they will probably assume that you have abandoned it. Technically speaking, you do not actually have a direct right to get your leg back, even though it has been part of you since you were born.
As Sheila McLean, professor of law and ethics in medicine at Glasgow University, points out, the law is "confused and confusing" when it comes to the issue of who owns the human body.
"The mantra is that there can be no property of the human body. You can't buy or sell bits of it," she says.
McLean, who chaired a review into the retention of organs in Scottish hospitals in 2001, believes the issue of property poses interesting questions for lawyers. "Although you can't claim any property rights to your body, other people can acquire property rights to it by a simple conversion," she says.
One of the most famous examples of this is the case of leukaemia patient John Moore, whose diseased spleen was found to provide a rare cell line worth potentially billions of dollars when it was removed by doctors during a planned operation in California. Although the scientists involved made a tidy profit from Moore's spleen, Moore himself was told he had no property rights to the cells used because the doctors had "transformed" his cells into something else.
In other peculiar cases under English law, people have been convicted of stealing their own urine sample from a police station. Meanwhile in Scotland, it seemed that - historically - it might have been possible to claim some property rights over a dead body, at least until it was disposed of. However, more recent case law suggests that any property rights that arise are probably only those of third parties.
McLean's ethics committee has called on the Government to clear up legislation surrounding property rights and the human body, especially now that organs are viewed as money spinners by biotech companies.
"There's a need for the law to revise its position and to look again at patenting issues," says McLean. "We also need to look at the laws which provide property rights to other people. We'd like the dispositional powers to be located with the people who were closest to them [in life]."
Your body's worth
If you are going to lose your thumb in an accident, make sure you sever it off at the base rather than simply slicing off the tip, as you will get a lot more cash in compensation terms.
Judges sitting in the Civil Court refer to guidelines set down by the Judicial Studies Board (JSB), which help them to decide how much money an individual ought to receive following an accident to compensate them for any "pain, suffering or loss of the amenities of life".
As Lord Donaldson of Lymington points out in his introduction to the JSB guidelines: "No monetary award can compensate in any real sense [and] these damages cannot be assessed by a process of calculation. Yet while no two cases are ever precisely the same, justice requires that there be consistency between awards."
Under the guidelines, injuries causing very severe brain damage can lead to awards between £140,000 and £200,000. Meanwhile, serious damage to hair can command between £3,500 to £5,500. A seriously injured thumb can result in a payout of £10,000-£18,000 (see table for more details).
Kevin Bitmead, a partner in Barlow Lyde & Gilbert's dispute resolution team, specialises in personal injury-related work. He thinks that a soon-to-be-published Government report into clinical negligence claims could be considering a shift towards a "no fault" system used in other countries. Under this arrangement, set rewards are paid out in certain cases. Bitmead, though, remains unconvinced that the change will necessarily be a good move.
Biotech means big business in the UK these days, with more than 550 companies now employing in excess of 44,000 people. And law firms have not been slow to cash in on the work that the biotech industry is generating, which still shows no signs of slowing.
James Gubbins, a partner in Weil Gotshal & Manges' London office, has been advising companies in the biotech and pharmaceutical sectors for seven years. "The area's really growing at the moment," he says. "A lot of firms
have woken up to the possibilities in the sector."
The biotech industry involves controversial and emotive issues, such as cloning, genetically modified (GM) technology, gene patenting and animal testing, but Gubbins says he manages to steer clear of the ethical arguments and concentrates on the lawyering.
"This sector is fundamental to the core of human existence," he states. "It looks at how we can help to keep people healthy, how we can improve quality of life when people are now living for longer and longer.
"Lawyers don't tend to get involved in the debates or lobbying, but it helps to be aware of the issues."
Work in this sector tends to be split in two: financing and corporate work on the one hand, which Gubbins hopes will begin to include flotations in the future as the startups become more established; on the other is the contentious work, such as patent advice.
Controversy aside, Gubbins says the sector makes for interesting work. "For example," he says, "we've been advising UK biotechnology company Acambis since they started up, and last year they were awarded a contract by the US government to provide 155 million doses of smallpox vaccine to help counter the threat of bioterrorism.
"It's possible that [the client] could have an impact on the diseases that have troubled our generation and those of the future."