Doodeward v Spence (1908) 6 CLR 406

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Facts

  • A stillborn baby with two heads is preserved by a doctor who displays it in his office.
  • Later, the doctor dies and there is a question of whether the preserved corpse can be seen as property.

Issue

  • Can there be property rights in a corpse?

Held

  • Yes, but only if skill has been involved in the preservation of the corpse.

Quote

  • “By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.”

Full Text

The full text is available here:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1908/45.html?stem=0&synonyms=0&query=title%28doodeward%20and%20spence%20%29


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