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Property in the BodyReview - Property in the Body
Feminist Perspectives
by Donna Dickenson
Cambridge University Press, 2007
Review by Jackie Leach Scully, Ph.D.
Apr 22nd 2008 (Volume 12, Issue 17)

This book is less conventional than its appearance in the Cambridge Law, Medicine and Ethics series might indicate. Its target is the effect of new developments in biotechnology, especially those concerning the use of the human genome and body tissues, on our relationship to our bodies. In particular, Donna Dickenson, Emeritus Professor of Medical Ethics and Humanities at the University of London, examines the ways in which our legal structures fail to deal adequately with what she describes as a "new enclosure movement": the enclosure of the territory represented by the human body where, she argues, researchers, biotechnology corporations and governments are staking novel kinds of claim.

Two introductory chapters lay out the conceptual ground. Dickenson draws attention to the surprising fact that our own bodies are not the subject of property rights in law, unlike objects that are deemed to be alienable. The legal distinction, deriving from Kant, is between persons and objects: something can be either a person or an object, but not both. The problem Dickenson identifies here is that human tissue and human genetic material contain elements of both personhood and thingness, and this complexity is inadequately grasped by current law simply because it was never crafted to deal with it. Drawing on work by Paul Ricoeur and by other commentators including feminist theorists, Dickenson argues that we cannot own our bodies in the same sense that we own a book or a house: rather, rights to bodily self-determination and non-interference are grounded in the sense that bodies are ours because they are expressive of our capacity for moral agency. But it is not necessary to believe that subjects own their bodies "like things" in order to believe that, in relation to their bodies, they have certain rights. She argues for a system of property rights as well as personal rights to cover the donation of tissue and DNA, using the accepted legal characterization of property law as a bundle of rights that deal with a broad common concept but in which different types of property relationship are covered by none, some or all of the sticks in the bundle. It's because property rights can be disaggregated in this way, Dickenson emphasizes, that public policy (and bioethics) need to clarify exactly what rights we want to protect (which sticks of the bundle we want to retain), and why, when it comes to the body and its constituents.

Having considered the distinction between property and personal rights, chapter 2 attempts to clarify notions of objectification and commodification. Dickenson defines objectification as the process by which something external to ourselves can be used to satisfy human needs and wants (it has use value), while commodification additionally involves exchange value. The question posed by the title of the first chapter, Do we all have 'feminized' bodies now?, reflects Dickenson's belief that culturally, we are actually quite comfortable with the objectification and commodification of bodies, as long as they are women's bodies. What we are uneasy about now is biotech's extension of these practices into bodies in general, and she argues that this prompts anxiety as the bodies of both sexes become vulnerable to the objectification that, historically, has been more (though not exclusively) confined to women's experience. Thus this anxiety about biotechnology's treatment of human tissue is still paradoxically gendered: "objectification and commodification continue to be perceived as more 'normal' for women's bodies; the only difference is that what is objectified and commodified now takes new and disturbing forms", such as ova or umbilical cord blood.  It's also pertinent to today's situation that many of the historical forms of women's objectification do not involve commodification as such. Similarly, "not all forms of objectification in modern biotechnology commodify individuals or their body parts, although they may still be ethically debatable. Essentially, such practices will be wrong if they objectify that which should be treated as having value in itself, regardless of its use potential."

Feminist ethicists and bioethicists have claimed for some time that taken-for-granted ethical concepts, such as informed consent or objectification, are rarely given a properly thorough examination in the public policy and bioethics arena (as opposed to legal or political philosophy discourse). Dickenson draws on feminist theory to provide an alternative conceptual context for the debates about human tissue ownership and patenting. For example, if we take on board the feminist insight that liberal thought is flawed by questionable assumptions of social and political equality, "we cannot assume that 'gifts' of tissue or other forms of alienation of tissue...are necessarily made between equals". The remaining chapters present a set of cases studies in which these concepts are fleshed out and given practical context, and many readers may find more accessible than the philosophical and legal discussion of the first two chapters. Chapter 3 takes the case study of the use of enucleated ova in stem cell research, and chapter 4 that of the banking of umbilical cord blood. In the ethical discussion of stem cell technology, for instance, by far the most attention has been directed at the unresolved question of the moral status of the embryo that is used as a source of stem cells, and much less at questions about the sources of 'harvested' ova. These chapters also highlight the effective invisibility of women and women's bodies in biotechnology, even (and perhaps especially) in situations, like this one, where the technologies would not exist "(w)ithout women's reproductive labour in producing ova for the stem cell technologies and cord blood for private profit-making banks." Chapter 3 details some of the evidence about the global exploitation of women for the production of ova, fuelled by an increasing lucrative research and therapeutic industry. Dickenson argues persuasively that at least some of the injustices she describes might be ameliorated by recognizing a property right in women's labour in ovum or cord blood donation.

Chapter 5 on the gender politics of genetic patenting rehearses some already well characterized biolegal arguments about the so-called 'inventive step' which is one of the criteria for patenting -- that is it must involve an invention, not just a discovery. A patent on genes or tissue is only possible because it has been agreed (by the patent authorities at least) that such patents do not cover genes per se, but only the form in which they are made available which has necessarily involved processes of cloning and isolation. In the patent offices' eyes, dumb (unpatentable) matter is transformed by the inventive steps of recombinant DNA technology Dickenson attempts (in my view, less successfully than in other chapters) to introduce a feminist perspective by arguing that the separation of dumb matter and inventive step is another example of the gendered matter/mind split. That is, what is at issues is not merely the obvious gender specificity of the sources of ova or cord blood; all of the body is feminized, at least in western culture, because the mind and rationality have historically been associated with the male gender.

Chapter 6 looks at biobanking and public trust, taking the well characterized Icelandic biobank as its main example. The two final chapters offer contrasting geographical case studies, set in France and in Tonga, both offering alternative conceptualisations of the relationship between human subjects and their bodies. In the discussion by the French Comité Consultatif National d'Ethique on foetal tissue, for example, unlike the same debate in the US and UK, individual consent to organ donation or sale was not considered enough to outweigh questions of social justice and the problem of power relations. According to Dickenson, "the official French view of the body as une chose hors commerce has provided a bulwark against commodification" that the Anglo-American contexts lack. Finally, chapter 8 looks at how the people of Tonga rejected what they came to see as the commodification of "the Tongan genome" by an Australian biotech company which made an agreement with the Tongan Ministry of Health to collect and store Tongan tissue samples for research into diabetes.

Many of the points and arguments covered in this book are familiar to bioethicists. What is less usual about it is its marrying of different fields of interest, and its use of feminist theorizing and perspectives to cast new light on these well trodden bioethical questions. This is refreshing, because it is still the case that too many philosophers and bioethicists consider feminist approaches, when they consider them at all, as only relevant to a severely curtailed set of bioethical issues that directly and uniquely affect women. Hence it is rare to find a text that offers a specifically feminist approach to bioethical problems that are not commonly taken as gendered.

What Dickenson does very usefully is to widen the terms of the debate at various places. So for example, her discussion of the Tongan case allows her to draw a parallel between the historical enclosure of terrestrial new lands and the genomic new territory. "Peoples of the global South are doubly vulnerable...first, because their lands have historically been regarded as open, as terra nullius, and secondly because the vestigial law of the colonial power prevents them from claiming a property in their own genomes, because of the doctrine of res nullius". A further parallel can be drawn between colonial and gender marginalization: "This vulnerability, which is particularly marked in the former colonial countries of the global South, chimes with the feminization of all bodies in the new biotechnologies."

One frustrating feature of the book is that it ends with odd abruptness, with a brief Afterword following chapter 8. It would have benefited substantially from a more extensive final discussion that could have wrapped the different strands of argument, that are prominent to varying degrees in the different case studies, into a more coherent whole. This might also have helped to integrate some of the feminist argument, which in one or two of the chapters (chapter 5 especially) sits more awkwardly with the case account than in others, and as a result is unlikely to sound convincing to readers who are not already familiar with the background of feminist cultural theory. Nevertheless, this book is to be recommended for an illuminating attempt at philosophical and legal rigor applied to cutting-edge ethical issues.

© 2008 Jackie Leach Scully

 Jackie Leach Scully, Ph.D., Senior Lecturer in Sociology, Policy, Ethics and Life Sciences Research Centre, Newcastle University, UK

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