Property in tissue (again) and negligent conception

Abstract

It seems that a recurring theme in our Recent Developments is the issue of property rights in tissue (see, for example, Stewart 2009; Richards, Madden, and Cockburn 2011; Giancaspro 2014). This has most commonly been associated with access to reproductive material and begins from the presumption of no property in tissue. A recent decision for the Superior Court of Justice, Ontario, whilst unsuccessful on largely procedural grounds, warrants a brief note because it adds to the general discourse on property in tissue and adopts a different approach. Piljak Estate v Abraham 2014 ONSC 2893 addressed the question of whether or not the family of a deceased person could access liver tissue for genetic testing. The property question arose because the family applied for access to the tissue under Rule 32.01 (Rules of Civil Procedure) and in order for the tissue to fall within the ambit of the Rule it must be defined as real or personal property.