Grave-robbers, mummies, cyborgs!

Can you own a dead body?

A strange story from 1868 holds the key to ownership of the human body and body parts.

This curious court case continues to impact us in the 21st century... and beyond.

Show Notes

Guest:  Dr Marc Trabsky, Associate Professor of Law, La Trobe University

Case: Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (31 July 1908)

www.lifedeathandlaw.com

Transcript

James Pattison: We start today's episode with a corpse and a question.

[Music]

James Pattison: Now usually when a podcast starts with an image of a dead body, the question is, whodunit? Our question while we stare at that dead body is, what is it?

[Music]

Melissa Castan: James, when does a person stop being a living person and start being a dead thing? Or more specifically, a dead thing that can be owned or traded or altered? Or become property. I've never really thought about the concept of my body not being mine anymore. I've always thought, well, I'll be gone. So what does it matter what we call it?

Melissa Castan: But our guest today has plenty of reasons why we should be thinking about the ownership of a human body in the 21st century. 

James Pattison: Melissa, we are going to be talking about cloning. We're going to be talking about biotechnology the black market in trading human body cyborgs for God's sake. So. This, this is a, a jam packed episode and we are talking with Mark Trabsky.

James Pattison: Mark Trabsky spends his waking hours contemplating all these things. He leads the project Life, Death and Law at La Trobe Law School, where he's an associate professor. 

Melissa Castan: On Case in Point, we promise you that you'll hear about incredible court cases from the authority on them and why these cases matter.

Melissa Castan: Well, Mark is the person to talk about today's case. You can check out some of his work at lifedeathandlaw. com. Mark Trebski, welcome to Case in Point. Thank you 

Marc Trabsky: for having 

Melissa Castan: me. 

James Pattison: Now, straight off to our listeners, we're, we're talking about death and some really tricky things today including stillbirth and the body of a deceased baby.

James Pattison: So if this brings up some difficult feelings for you, please find another episode that would be a better fit. Mark, you have written, there was this quote from your website, which just stuck with me Do it out to me and I know why you put it on there. It is beautiful. The quote goes, where there is death, one always finds law.

James Pattison: Law is teeming with the chatter of the dead. That's good. 

Marc Trabsky: That's David. 

James Pattison: Tell me about this quote. 

Marc Trabsky: Yeah, well, look, I came to this quote when I was doing my first book and what I was fighting against was this tendency in death studies, which is this whole academic discipline studying death, where they see law as boring.

Marc Trabsky: As bureaucratic and it actually kind of prevents people from grieving properly or burying their loved one. And I wanted to turn that around and actually see law as something productive that we all have to deal with law when someone dies. So whether it's going down and registering a loved one as a dead person, whether it means dealing with probate and wills and estate.

Marc Trabsky: So what I wanted to do is kind of switch it around and say, actually, law, Has a positive role in our relationship to death. And let's think of it like that and not something that's You know, just repressive. 

James Pattison: I think that's the raison d'etre of this podcast as well. 

Melissa Castan: Well, you mean try very hard to make it interesting.

Melissa Castan: That's exactly 

James Pattison: right. Now let's, let's set the scene. It's 1868 in, in New Zealand. Can you introduce us to someone by the name of Dr. Robert Spence? 

Marc Trabsky: Dr. Robert Spence is a, Ignomatic figure who perhaps would never be remembered if not for a major court case that eventuated in the High Court of Australia.

Marc Trabsky: So it's incredible. What we know, and it is a bit hazy, is that in 1868 in New Zealand, a mother gave birth to a two headed stillborn baby. And we don't know what happened to the mother. And I think that is important to note here. That the female figure in this court case is totally rendered silent. And is ignored.

Marc Trabsky: And we don't know her fate. This doctor though. We know about. And we know that he preserved that baby in a container with spirits. And we could ask the question here, why, why would you put a two headed stillborn baby in spirits? And another word. That perhaps explains why is the word curiosity so that props up in this court case a lot curiosity So -

James Pattison: it sounds like a 

James Pattison: very 1800s sort of word.

Melissa Castan: I think that's 

Melissa Castan: a polite word for what's going on here. 

Marc Trabsky: Yeah, a polite word. I mean think about this an actual living thing so this baby was born and then died straight away which is rendered a curiosity and that's because in the 18th really and 19th century, what we have is a whole scene of exhibitions where bodies get turned into curiosities that get exhibited.

Marc Trabsky: Now you might think, Okay. That's the 19th century. That doesn't happen today. In fact, we still have curiosities today. So I'm thinking of like Gunther von Hagens's Body Worlds. So Body Worlds came to Australia you know, in the 2000s. And if you go to Amsterdam today, you can go and see his Body Worlds. And in there, there are preserved human beings preserved through his bespoke plastination technique and.

Marc Trabsky: People have donated their bodies to be exhibited as curiosities in Body Worlds. 

James Pattison: Oh my 

James Pattison: God. 

Melissa Castan: It's the craziest looking thing. I've, I've seen the pictures. I haven't been to the exhibition. There's all these. Sort of skinless people with their muscles all posed in sort of gymnastic positions or, you know, rest positions and you see the whole musculature there sort of exposed.

Melissa Castan: It's crazy. 

James Pattison: And is this as art or is this as scientific furthering? 

Melissa Castan: All of that. 

Marc Trabsky: It's all of that. I mean, there's a debate there about. You know, the purposes behind it, but he definitely has traveled his exhibition around the world to enlighten people about the human body, and wherever it is.

Marc Trabsky: Crowds flock to see these bodies. Now, a lot of them you know, donated by people. So there's consistent mechanisms, but there have been some scandals in the past about exactly where he accepts donations from. And, but I'm going to bring it back to Doodeward v Spence, the case we're talking about today, because when I teach this case, I bring up Body Worlds and I say, if Body Worlds comes back to Melbourne.

Marc Trabsky: And someone were to steal one of those bodies, can Gunther von Hagens demand it back? Does he own those bodies? And that's what brings us back to Doodeward v Spence. 

James Pattison: Here we go. 

Melissa Castan: Do you 

Melissa Castan: want my answer now? Or can I wait till we finish the exam? 

Marc Trabsky: You can answer now. 

James Pattison: No, no. Spoiler alert. Spoiler alert. 

Melissa Castan: No, I'm not spoiling.

Melissa Castan: Keep going. Okay. So, tell us about Robert Spence and what his concept was for taking this, this body. Unfortunate

Melissa Castan: dead baby. 

Marc Trabsky: I think he just wanted to make money. I mean that, that was clear you know, at that time you could travel around to sideshows and circuses and you could display these these bodies and 

James Pattison: This is the era of like the The freak show, right?

James Pattison: The freak show. 

Marc Trabsky: And you know what, we also had the era, this is the era where you started to have anatomy museums kind of pop up and what anatomy museums want to show is pathologies. So they want to show deformities, pathologies to people. And there's a real kind of discovery of the human body in all its different forms.

Marc Trabsky: So he goes and he shows this around in New Zealand and then he passes away. And that's all we hear from him at that point. What happens 

James Pattison: to his body? 

Marc Trabsky: Well, we never know what happened to his body, but what we do know is that this curiosity lived a longer life because it was sold by auction to the plaintiff's father.

Marc Trabsky: So Doodeward's father, and then it was inherited by the plaintiff Doodeward. 

James Pattison: Right. So he, so someone rocks up to an auction, this Mr. Doodeward. 

Marc Trabsky: Yeah. 

James Pattison: Buys it. He then dies. We've already, there's a lot of death. The body count on this podcast is huge already. Shocker. And then he dies and leaves it to his son.

Marc Trabsky: Yeah. 

James Pattison: Okay. Okay. 

Marc Trabsky: Yeah. And, and look, I can't tell you more information about who leaves a two headed stillborn baby. To one side. Top of the list of questions for me. I can't, yeah, I can't provide any answers around the rationality of that. I think this is a very valuable curiosity, right? That's what we, we find out because we do know that in the 1900s, Doodeward goes around, I'm pretty sure the country, so the whole of Australia, exhibiting this two headed stillborn baby in public.

James Pattison: Now, enter someone else confusingly. Also by the name of Spence, no relation to the initial Dr. Spence. This is, we have a Dr. Spence at the start. Now, a number of decades later, we have, I'm just going to say, Officer or Constable Spence, rocks up and And intervenes in this story. What happens here? 

Marc Trabsky: So what we find out is that at some point Doodeward is kind of arrested for committing the offence of public indecency.

Marc Trabsky: Let, let me just go back a bit. Okay. Because I think we need to get a bit more of the backstory behind why we get to this point where someone is exhibiting a two headed stillborn baby and someone gets arrested for public indecency. So, cause your mind back. To 16th century England. I remember it well.

Marc Trabsky: What was happening there? I think, you know, we, we, we're kind of towards the end of the enlightenment period or in the middle of it. And much of Europe is discovering anatomy, science of anatomy. And in order to do that, they're doing autopsies and England is like, nah, we don't want you to do autopsies, but then we know you're going to do it anyway.

Marc Trabsky: So we're going to legally supply you with some bodies, convicted criminals for you to do autopsies and to pursue this new discipline of medicine and anatomy. Fast forward to the 18th and 19th century. You've got an explosion of medical schools, lots of medical students, particularly in London and Edinburgh and a need for bodies, but you still only have this, this one legal supply coming from convicted criminals.

Marc Trabsky: So they would you know, be executed and the bodies would be sent to medical schools. So with this. There was a supply and demand effect going on, and this led to a lucrative market for trafficking dead bodies. Now we all know about this from TV and film, right? The famous ones being William Burke and William Hare.

Marc Trabsky: So. Classic grave robbers, you go into the cemetery, you know, find a freshly, you know, buried corpse, take it out and then sell it to a medical school for a small fee. What William Burke and William Hare did though, is they decided, look, we, you know, let's just cut, shortcut that journey to the cemetery and kill people and then take them to the medical school and then they can do autopsies on them.

Marc Trabsky: Oh my God. 

Melissa Castan: This is a topic, You just know way too much about it. 

James Pattison: And this is not the case that we're talking about 

Marc Trabsky: today. This is not the case. And so this is all happening in the 18th and 19th century. And you know, people are really scared of actually being buried because they're like, well, I'm just going to get, you know, dug up and I'm going to be sent off to a medical school.

Marc Trabsky: And people were really frightened about this idea of autopsies. And I don't want that to happen to me. And I don't want that to happen to my loved one. In the UK in 1832. There was an Anatomy Act, and that seemed to regulate the supply of bodies to medical schools, but it overwhelmingly affected people.

Marc Trabsky: Convicted criminals, paupers and Indigenous people. And I should say part of this history is this trade trafficking in Indigenous corpses, particularly throughout the British empire. So coming from Australia back to the UK and a whole set of pathologists and medical doctors becoming bone collectors.

Marc Trabsky: So this is all going on. And during this time, the common law is saying. Well, what do we do? What do we do to prevent this? So, back in, there's a, there's this odd case in the 17th century called the Haynes case and in that case they said a dead person is neither a person nor a thing. So a corpse is neither a person nor a thing, but a lump of earth.

Marc Trabsky: That didn't solve anything, right? It, so basically said that corpse isn't property, no one can own it, but neither is it a person. 

James Pattison: Is it a lump of earth meaning this is just sort of a waiting burial? It's just a 

Marc Trabsky: thing, it's just a thing, a thing, a thing that can't be owned though, like I could actually own dirt, but this is something I can't own.

Marc Trabsky: And then, you know, there's some other cases. One of them I just like, and I'll tell you quickly is the iron coffin case. And that's because. It involved Mr. Gilbert who wanted to bury his wife, but he insisted on the church allowing him to use an iron coffin instead of a wooden coffin because he wanted to prevent the grave robbers from digging up her corpse and send it to the medical school.

Marc Trabsky: And then, yeah, like crazy. And then the church basically, well, the ecclesiastical court said, no, you can't, because an iron coffin won't. Disintegrate, it won't become that lump of earth. So we're not going to let you you know, bury her in an iron coffin. And so this is all going on and there's a problem here because what happens then if someone goes and digs up a corpse in a graveyard to sell to a medical school, if the common law is saying, Hey, no one owns this thing.

Marc Trabsky: Then can anyone just take it? Because in order to prove that someone is stealing from me, I need to prove that I own it before someone can be found guilty of stealing. So what did legislation do? It didn't really solve this issue. And so we fast forward to Doodeward v spence. Why was he arrested for public indecency?

Marc Trabsky: Because that was the only thing they could do to prevent someone. Gotcha. From going around and say, taking a dead body and moving it from one place to another place or storing it in their home or putting it on display. They, the, they couldn't say like, he stole it. And even if someone else stole it, that would be a problem.

Marc Trabsky: And he could, you know, how do I prevent someone else from stealing it from exhibition? 

James Pattison: So from a policy perspective, we're trying to stamp out this behavior, but we haven't solved, we don't know almost what philosophical question that we're solving here in this body. What is this body? It doesn't belong to anyone, so it can't be theft.

James Pattison: So therefore we will say it is a, an offense against morals to, to be displaying this body in public. Okay. All right. So where are we now? 

Marc Trabsky: So we're back in 1908 and you know, the couple of years before that, we know that the police turn up to an exhibition and they arrest Duardwood for committing the offence of public indecency.

Marc Trabsky: What probably their big mistake was is they took away the curiosity. So if they just fined him and said, you know, we're gonna, or, you know, maybe imprison him even at that time, you know, that might've, you know, prevented this from ever coming to the high court of Australia. But what they decided to do was confiscate it.

Marc Trabsky: Why? Probably because Doodeward was like, I'm going to exhibit it again and again and again. And the police were like, We're going to take it away from you. And so they took it away from him and then Doodeward was so determined to exhibit it that he goes to the police and says, I want it back. And how does he say, I want it back?

Marc Trabsky: He says, it's my Oh, 

James Pattison: the, the stage is set and 

Marc Trabsky: the stage is set for a stoush between the police and Doodeward about who, whether someone actually owns this. And if so, 

Melissa Castan: who owns it? I mean, obviously this is going to make one of the earliest high court cases in Australia on who owns this, this tragic baby preserved in Australia.

Melissa Castan: Whatever it was, methylated spirits, as you do in a jar. It started in New Zealand, but Doodeward is actually exhibiting in Australia now and the police come along and take the property off him. And he then decides he's going to, what, ramp this up to the newly formed High Court of Australia to get back his, quote, property.

Marc Trabsky: Well, he, so he, he was in Sydney. He. We know that. And he went first to the Supreme Court of New South Wales. As you do. So before he went to the High Court, he went to the Supreme Court and the Supreme Court said there is no right of property in a human body. So they basically rejected Doodeward's claim and said, look, you know, we cannot give this back to you because you don't own it because you can't own it.

Marc Trabsky: They, they had some curious things to say. They said an unburied corpse awaiting burial. Certain persons have duties and perhaps rights with respect to it. Now, why would they say that is because if no one owns the body, when someone dies and they say, go to the funeral director, does that mean like.

Marc Trabsky: Anyone can do whatever they want with it, right? Cause, cause no one owns it. So the funeral director could decide, Hey, I'm going to like, just store it in my place where I'm going to bury it somewhere else. So they were kind of saying, well, look, no one owns it, but Hey, we need to protect this journey to burial.

Marc Trabsky: That's all they said. Doodeward was really upset. He wanted his curiosity back. I'm using the language here in the case. So he went to the high court. 

James Pattison: What happens? 

Marc Trabsky: So the high court award the body back to Doodeward. Doodeward wins. And that is what's so remarkable. 

James Pattison: Surprising? Like for the time? 

Marc Trabsky: Very surprising.

James Pattison: Okay. 

Marc Trabsky: Very, very surprising. And, and this case is so profound that it's influenced not just subsequent decisions in Australia, but also the UK and even in the US it's had an effect. So it's such a huge case because it's one of the earliest. Case is to find property in a human body, and it's just had a ripple effect across much of the common law well, but even beyond that.

James Pattison: So we're gonna explore those impacts throughout the 20th century and we're gonna look ahead as well for what, what might be coming in the 21st century. And. beyond in terms of property in the human body. Why was it that the High Court said this is property? 

Marc Trabsky: Okay, so there's three justices on the High Court.

Marc Trabsky: There's Chief Justice Griffith Justice Barden and Justice Higgins. And the so Barden and Griffith Found in the plaintiff's favor and Higgins was in a minority decision. But and Barden and Griffith had slightly different opinions on it, but Griffith is the main one. So Chief Justice Griffith was, it's the main judgment and this is what everyone goes by when quoting this case.

Marc Trabsky: So why? It's interesting. So Griffith had a problem. With not finding ownership in a corpse and therefore rendering museums redundant. So he seemed really worried with Egyptian mummies. 

Melissa Castan: I mean, I do worry about Egyptian mummies too, but museums would not be my first point of concern when talking about the desecration or keeping of, or interference with.

Melissa Castan: Wow. With deceased remains. 

James Pattison: He also had a bit part to play in Indiana Jones. 

Marc Trabsky: He, look, he, he said, look, firstly, he said, you know, possession of an unburied human corpse is not necessarily unlawful. Why? There's funeral directors. They possess a human corpse. A human corpse, you know, there might be a wake in your home, so you're possessing it.

Marc Trabsky: He did acknowledge that like, Human corpses, you know, being in a public place, for instance, might offend religious values, public health or decency, but is possessing a human corpse unlawful. And he said, well, no. And this is where he said, cause he said, surely it has to be lawful. Otherwise museums would have to hand back all the Egyptian mummies.

Marc Trabsky: They won't be able to exhibit them and all these other, you know, human body parts. And once again, remembering trafficking indigenous corpses here. So clearly Griffith was supportive of this colonial project in trafficking indigenous remains across the world. 

James Pattison: Wow. That's fascinating. He wanted 

Marc Trabsky: to protect that.

Marc Trabsky: He was definitely not critiquing it. So he said that, but then he said, look, I don't want to say everyone's capable of owning a corpse because that's going to have far reaching consequences. So if I do say anyone can own a corpse and we'll see, see soon in the 20th and 21st century what happens, but if we say that, whoa, that's going to open the flood gate.

Marc Trabsky: So he came to a compromise decision and it goes like this. Okay? If a person has kind of the, you know, the legal right to exercise work and skill on a human body or part of human body, such that that part or body becomes something different. So it requires a kind of different character. Then they have the right to own it.

Marc Trabsky: So practical in this and really come down to that doctor. So that doctor found in his possession, this two headed stillborn baby, I, I would argue he lawfully didn't have the right to do what he did with it, but you know, that's 1868 and the case is in 1908. But what he did with it is he put it in a jar of methylated spirits.

Marc Trabsky: So that was work and skill such that it became something different from a corpse awaiting burial. That was enough to turn it into property. 

James Pattison: Does that gel with the. Ideas around ownership of land as well, that if you are using land, putting it to work and using it, cultivating it, et cetera, that that bestows proprietary rights upon it.

Marc Trabsky: You're totally correct there. It's the labor theory. So it's Locke's labor theory, which is used to justify how land becomes something capable of being owned, same thing being applied to the human body. So it's about the labor we put into something that makes it. different from, for instance, a mere corpse awaiting burial.

Marc Trabsky: So it's that labour bit, that work or skill. And that's, what's been crucial to the, you know, as range of cases in the 20th and 21st century. 

Melissa Castan: Okay. So the, the court made this decision, you know, that it is possible for, for Doodeward to own this. What happens next? What happens next in law? 

Marc Trabsky: So, I mean, it's interesting because after that case in 1908, we don't see really any other cases dealing with Doodeward v Spence, and it's not really until the 1970s, 1980s that we have a range of changes in relation to dead bodies.

Marc Trabsky: So, first off, we have Parliament coming in to set, set regulations on what you can do and not do with dead bodies. And clearly this was in response to the fact that the common law is so uncertain that someone could use their work and skill to turn into something else waiting burial. So, in Australia right now cemeteries, they're all regulated by legislation, so there's legislation in each state and territory that will regulate what you can do with a dead body how to dispose of it, so, you know, for instance, you can't just throw a dead body in the sea, you can't just bury a dead body in your property, you can't store it in a closet.

Marc Trabsky: So all of these things are regulated by legislation. Same thing for organ donation and transplantation. So we know that only certain people can take an organ out and, and donate it to someone else. All of this is regulated, but one of the kind of. You know, one of the significant cases actually is in England in 1998.

Marc Trabsky: So there's a case called Kelly and Lindsay, R versus Kelly and Lindsay, and Kelly and Lindsay were artists. And for some reason, I can't, you know, make sense of their rationality here, but they decided to go into the Royal College of Surgeons and do a kind of modern day grave robbing. I think they were on doing some art project.

Melissa Castan: Performance art? 

Marc Trabsky: It could have been a performance art project. And they, they're basically, they went in and they said, They stole 35 human body parts from the Royal College of Surgeons. 

James Pattison: What are we talking? 

Melissa Castan: That's not good. 

Marc Trabsky: I'm not, I think it was skulls. I think it was some skulls. I'll go with the skulls.

Marc Trabsky: You know, they might've been, you know, doing some painting. Clearly they were testing the law. They might've been, you know, some, you know, wannabe law students. Now you're saying that 

Melissa Castan: they're law student artists. I think they 

Marc Trabsky: could have been. I mean, maybe they wanted to see how far can Doodeward v Spence take me.

Marc Trabsky: I think we need to do some more research. It is speculation here. So what happened is, you know, in order to convict them of faith, It has to be capable of being owned. And the English court relied on Doodeward v Spence saying these corpses in the Royal College of Surgeons had been, you know, labored over such that they were different from a mere corpse awaiting burial, which means the Royal College of Surgeons owned it, which means.

Marc Trabsky: Kelly and Lindsay were guilty of 

James Pattison: thirth. So you're looking at something there that's like, I was going to say like, it's a clear cut case of, 

skull thievery. Of, yeah, 

James Pattison: skull thievery. But, but this applies, you know, like, There's a reason that we're talking about a case that still reverberates now in this age of like, crazily advancing technology.

James Pattison: So that case involving the College of Surgeons is something about theft. What happens from there? Like, there's been major technological advances even since 98. How does Doodeward v Spence apply beyond something like theft? Why is it still relevant? 

Marc Trabsky: Yeah, many different ways. So let's take a totally different example, which is, there's a string of cases, and they come, they're in the 21st century, and they're around with a spouse.

Marc Trabsky: May be able to extract a human gamete from their deceased partner. 

James Pattison: What is 

James Pattison: a gamete? 

Marc Trabsky: Sperm 

Marc Trabsky: or ovum. 

James Pattison: Oh, I know them. 

Marc Trabsky: Yep. 

James Pattison: Yeah. 

Marc Trabsky: So

Melissa Castan: We'll -have a talk afterwards, 

Melissa Castan: James. 

James Pattison: You mean that my three children didn't just arrive by stork? 

Melissa Castan: We'll, we'll, we'll come back to it,

Melissa Castan: okay? 

Marc Trabsky: Look, so in these cases, the facts are really similar.

Marc Trabsky: Basically a partner dies and there's a limited period of time. And most of the, most of the time, these partners who are deceased are the, a male partner but not always the male partner. So sometimes it's the female partner and the partner who survives. Wants to access their sperm or their ovum for IVF, and what they actually had to do, well, they still need to do is apply to the court to be able to extract that.

Marc Trabsky: And Doodeward v Spence came up and it was used to justify that a spouse may do so, that it's legal for them to extract and possess that human gamut either prior or after their death. 

James Pattison: Oh wow. Okay. And so that, is it that it belongs? To who? 

Marc Trabsky: The spouse. So what, some of these cases involved things like the IVF clinic spoiling the sperm.

Marc Trabsky: So, you know, or it was used incorrectly for someone else and the spouse is trying to sue the IVF clinic for say, repriations. Like there's a whole range of cases where it's around, I mean, literally sometimes it's about getting access. So actually asking the court, can I? extract that sperm out of my dead husband's body.

Marc Trabsky: And look, the reason for this is arguably we own what's currently in our body while it's in our body. So we own it right now, because someone can't come to me and say, Mark I would like to buy your hand. And own it and, and no, it's in inviolable, I, I, you know, so I own it while it's in my body, but I can't sell it, I can't trade it as well.

Marc Trabsky: So the question is what happens when something is taken from you and can it be taken from you? And in this cases, it's all about sperm. It's about, can it be extracted from you? And when it is extracted, does it Is it owned by the dead person or, you know, or is it owned by the person who extracted it?

Marc Trabsky: Or is it owned by the person who requested the extraction of it? 

James Pattison: So you, if you are a pioneering scientist who had come up with the technique of extraction, there are competing claims to the ownership of the human biology. 

Marc Trabsky: Yeah. So that, this is the big challenge, this is where the law is uncertain because it depends what the scientists have done.

Marc Trabsky: and the labour and skill that they've used in extracting these body parts or these tissue or sperm as to whether the company that they're employed by actually owns it and can do with it whatever it wants to do. Or, in these cases, whether the spouse owns it. So, in these cases, the case was used to justify that the spouse may possess that, but these early cases were more around, can the spouse actually get access to be able to extract that sperm?

Marc Trabsky: What we've seen lately is some more controversies around, you know, what happens if IVF clinics give the sperm out to a different person? Or what happens if they don't properly store it? Can they be sued? 

Melissa Castan: Cause this happened in Queensland recently. 

Marc Trabsky: It did. So, you know, in this case I think it was over you know, period of maybe six, seven years that what's come out is that the IVF clinic were given the sperm to different people.

Marc Trabsky: Yeah. So they were mislabeled. Yeah. 

Melissa Castan: So there's a lot of devastated families out there as a result of that. So there's going to be like breach of contract and negligence type of claims there. Yeah. But there's also the question of this ownership of the blood. The product, right? 

Marc Trabsky: Yeah. Who owns that sperm? Is it the IVF clinic or is it the person who's in that contractual relationship with the IVF clinic Do they own the sperm?

Marc Trabsky: You know, there's question marks around that. I mean, we'll, we'll see if this goes to court and, and what happens. 

James Pattison: Now my mind immediately goes to science fiction because we've started with the sort of curiosities, but I immediately go to something like Terminator and I'm, I'm thinking, I mean, we promised cyborgs at the start of this episode.

James Pattison: So, Immediately what comes to mind is Arnie saying, I'm a cybernetic organism living tissue of a metal endoskeleton. Cyborg technology will happen. It's being pioneered. That integration of human and machine. So let's just say, I mean, to, to, to, mix up our, our movies that, you know, it's Robocop. I've, I've, I'm a cop.

James Pattison: I've been, I've been, I've been shot to death and then the police force decides to resurrect me as part man, part machine. Do I belong to myself anymore or do I belong to the police force who resurrected me with their skill and ingenuity? 

Marc Trabsky: I love this. topic and I opposed to my students as well, I asked them, you know, will corporations own our bodies?

Marc Trabsky: It's scary. It's, it's a real dystopian view, but I'm, I'm, you know, Unfortunately, I'm sad to say this is probably going to be our future, because what we're seeing is we're seeing a whole lot of development of artificial organs, and we're seeing a lot of metals being put into our bodies. So everything from, you know, artificial hips to metal meshes to, I mean, Pacemaker today has Wi Fi capabilities.

Marc Trabsky: So there's a big question mark. Like if you can't afford. These you know, you can't afford to pay for say this pacemaker and the company behind it says we're going to loan it to you 

Melissa Castan: and then they switch it off because yeah, I 

James Pattison: mean, so could you also be like, you know, we're introducing the podcast USA I'm Melissa Gasson and I'm James Patterson brought to you by Cyborg Technologies like I'm no longer me.

Marc Trabsky: Yeah, so there's many like films that have explored this. Actually. There's some films that there's one, Oh, I forgot the name. I think it's timeless maybe with Justin Timberlake where he owes a lot of money and his life, like they're going to repossess his body if he doesn't pay the money. That he owes in time.

Marc Trabsky: And yeah, so there's like this countdown. I, so look, that is potentially the future. So I think what we're seeing is we know you own your own body, but if this new technology that takes a lot of skill and labor is put into your body and you don't have universal healthcare and you're paying for it, you're taking out loans, can for someone, you know, someone repossess it.

Marc Trabsky: Right now, obviously not. You know, right now you can't take the pacemaker out because it will kill you and that will be murder. So they can't do that. But what happens if it's you know, what happens if it's an artificial kidney? You know, and you can survive with one kidney. So maybe they take out the artificial, the second artificial kidney and repossess it.

Marc Trabsky: I mean, the, this is some of and, and look, that might be far fetched, but. You know, one of the areas that this all touches on is the global trade in human body parts, and we know that there are underground trafficking across the world, particularly of kidneys. So we, we see totally, you know, illegal trades where people are trafficked to some countries Singapore being one, for instance, where they undergo operations, they, you know, a kidney gets taken out.

Marc Trabsky: And then a wealthy customer from another country comes to Singapore and gets the guinea put into them. 

Melissa Castan: So Mark, you posed a question at the start about the body world, plasticated human figures. And if someone stole one of those figures out of the exhibition, would they be susceptible to a a charge of theft?

Melissa Castan: So what's the answer to your question? 

Marc Trabsky: Yes. 

Marc Trabsky: Yeah. So if we apply Doodeward v Spence, Gunther von Hagen, and I've seen you know, on online, how he does. This technique. He spends so much time and labor to turn these real flesh into these plastinated but intact preserved bodies that he would clearly Yeah, well, to get his body's back if someone were to steal it from a body world exhibition.

Melissa Castan: Mark, you, you mentioned before that there was this grave robbing sort of, you know, habit or this trade in grave robbing that was going on. Is that still a thing? Do we still see this? So 

Marc Trabsky: unfortunately we do, but it's taken different forms due to new technology. And so in my latest book, death New Trajectories of Law, just plugging it here.

James Pattison: Luckily you did that. 

Marc Trabsky: I look at a case study by the International Consortium of Investigative Journalists, and it's called Skin and Bone. And they you know, they published a report in 2012 on the global economy for cadaveric human tissue. So, I would say that Grave Robbing is a lot more sophisticated right now but it is targeting, you know, the global south, and it's targeting marginalised and poor populations around the world.

Marc Trabsky: So, in this report, what they were looking at was that there were bodies being sent to morgues in Ukraine, in particular, at the time, and there were some Ukrainian people You know more pathologists who were basically taking out a lot of The grizzly flesh in the bodies and then sending it off to Germany and then sewing up the bodies and then The bodies were handed back to the family and the family were like, where is all their flesh?

Marc Trabsky: There's just skin and then what the investigative journalists did is they tracked where that flesh went and So to say in short it went from Germany to the US And came in the form of certain medications. So it was used because there's some medication called biologics, which is medication that uses human body parts.

Marc Trabsky: So organic human material for, for good reason. It's used for arthritis, for cancer, for different sort of ailments. But what the journalist tracked was that there was a company called RTI Biological that was basically harvesting these bodies from Ukraine. Went through Germany, they were manufactured and out through the US and then distributed around the world.

Marc Trabsky: And there's so many different reasons why this is wrong. So many different reasons. But one of the things I explore is how Doodeward v Spence doesn't help us, right? It doesn't help us because it's an Australian case and this is a global problem, but also it probably would almost justify You know, if, if lawfully they had right to these corpses, which they didn't in the Ukraine, but if someone has a lawful right to possess these corpses, then they potentially could, you know, harvest them and turn them into medication.

Marc Trabsky: And so what I discuss is how we need to. We need to reconceive the dead body differently, and we need to think outside the confines of a doctrinal perspective, and we need to actually think about it socially, legally, rather than just doctrinally, and that's what I explore in this book, and I look at the way in which Really waste products from death related trades, so the post mortem examinations, disposal of human remains, is being divided into body parts that can be bought, sold, lent, or exchanged.

Marc Trabsky: So, there's a lot going on around the world, and unfortunately, Doodeward v Spence hasn't actually solved that problem. 

James Pattison: The way that One decision can just explode into an absolute can of worms. Picture a can of worms exploding. The way that, the way that one line of legal reasoning from over a century ago can affect where we are going and our, our very, these deep philosophical questions about, Who are we is so, so fascinating.

James Pattison: Would it be better if this case didn't happen at all? 

Marc Trabsky: That's an interesting question. I mean, what would have happened if we didn't have this case? I mean, I think if we didn't have this case, we would be stuck with that Haynes decision, which is a dead body is neither a person nor a thing, but a lump of earth that have no capacity.

Marc Trabsky: So that would not be a good situation. And also. You know, Doodeward v Spence really saved museums from giving away their Egyptian mummies. So, you know, what would have happened if not for Doodeward v Spence, I don't know whether we would be able to go to that latest exhibition at the NGV right on, I think right now, exhibiting Egyptian mummies.

Marc Trabsky: What a 

Melissa Castan: fascinating body of law you've exposed us to, Mark. 

James Pattison: That was really good, Melissa. Fantastic. 

Melissa Castan: Associate Professor Mark Trebski, thanks for speaking with Case in Point. 

James Pattison: Thank you.

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Melissa Castan: James, I love this episode. Where can I find more? 

James Pattison: Well, I never thought you'd ask. If you like this podcast, please consider subscribing or following the podcast app. There's a bunch more episodes. You can also leave us a review. We'd love to hear what you think of the show. 

Melissa Castan: Especially if it's a five star review.

Melissa Castan: We especially like those. I'm right there with you.

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