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| Doodeward v Spence | |
|---|---|
 | |
| Court | High Court of Australia |
| Full case name | Doodeward v Spence |
| Decided | 31 July 1908 |
| Citations | [1904] HCA 1, (1904) 1 CLR 91. |
| Court membership | |
| Judges sitting | Griffith CJ, Barton & H. B. Higgins |
| Case opinions | |
| If a person has by the lawful exercise of work or skill so dealt with a dead human body that it has acquired attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it and, if deprived of possession, may maintain an action for its recovery against any person not entitled to have it for the purpose of burial. | |
Doodeward v Spence is a 1908 Australian high court case regarding ownership of human remains.
Background
[edit]Mr. Doodeward had exhibited a two-headed stillborn fetus, preserved in paraffin oil, at a fairground. A policeman, Spence, seized the jar and human remains and refused to return it. Mr. Doodeward brought a claim in detinue seeking its return.[1]
Mr. Doodeward
Opinion
[edit]Starting from the usual position of the law, that nobody owns a body or body parts, the High Court announced a new rule that exercising "work and skill" to preserve the body would grant a person greater rights of possession than the usual limited right to possess a body for the purpose of burial.[2][1]
Justice Higgins' Dissent
[edit]Legacy
[edit]The case has been cited in the UK and in Australia, and is recognized as an integral role in the development of principles under which a person can acquire property rights in a human body.[1]It was one of the bases for R v Kelly and Lindsay, a criminal case involving the theft of body parts by an artist. [citation needed]
References
[edit]- ^ a b c Falconer, Kate (August 2019). "Dismantling Doodeward: Guided Discretion as the Superior Basis for Property Rights in Human Biological Material". University of New South Wales Law Journal. doi:10.53637/dyym2512. ISSN 0313-0096.
- ^ Skene, Loane (January 2014). "The current approach of the courts". Journal of Medical Ethics. 40 (1): 10–13. doi:10.1136/medethics-2012-100994. ISSN 0306-6800.