Rolling the bones: Decisional law and the risks of treating the body as property

Innovations in biotechnology — that fracture bodily processes, blur life's phases, or transgress human limits — challenge the philosophical concept of personhood by altering culturally informed body boundaries that delimit what is and is not “us” and define each of us as distinct individuals. Within the medical encounter, such boundaries determine what level of decision-making authority we have regarding our bodies and bodily parts. Unlike lay beliefs of the body, bodily tissues, and DNA as “fixed,” “unique,” or “rigidly bounded,” ethical and legal perspectives emphasize the imprecision of body boundaries and, thus, the importance of boundary maintenance. As bodies have become more useful, courts have had to decide when our bodies belong to us. Adjudicating these cases, judges both discover and influence body boundaries. A cultural model describing how society constructs body boundaries is useful, not only for courts that must balance competing interests in bodies but also for policymakers attempting to draft legislation as new technologies emerge. A Grounded Theory, “reverse ethics” analysis of 408 U.S. judicial opinions from 1872 to the present provides a framework for such a model, revealing that courts employ the concepts of risk and intent to ascertain permissible uses of the body. In this light, bodies are neither strictly “objects” nor “subjects,” but simultaneously of value and beyond value. In Marxist terms, then, the body is a use-value. Biotechnology — and legal rulings — can transform it into a social use-value or even a commodity, despite proscriptions against treating the body as property.