Columbia Law Review

Rapid advances in biotechnology and medical science are creating new uses for many bodily tissues that were once thought to have no value beyond their original functions. Bodily tissues that once would have been buried at death are now valuable for use in transplantation, research, education and commercial endeavors. Although this has always been true to a limited extent (for example, the use of cadavers for medical education), the expanding range of possible uses has forced a fundamental reconsideration of the legal nature of the human body. This is especially true given the recent possibilities for commercializing human biological material. In order to respond to this new biotechnological revolution, society and the legal system will have to grapple anew with questions such as whether property [FN1] rights can exist in a human body (or parts thereof) and, if so, in whom do such rights vest. The answers to such questions will in turn have repercussions on how society conceptualizes such constitutionally important terms as "person" and "property." If the body is property then it may come under the ambit of the specific constitutional protections afforded to property in the fifth and fourteenth amendments. The difficulties inherent in an altered perspective on the body can be seen in the narrow but illustrative example of state laws which permit coroners to remove corneas and other bodily tissues for transplantation under certain circumstances without the prior consent of the deceased or next of kin.

This Note argues than property rights do exist in the human body and its constituent parts. Characterizing the body as property leads to the conclusion that laws authorizing the removal of bodily tissues without the consent of the "owner" must be consistent with the due process and the takings clauses of the fifth and fourteenth amendments. Specifically, this Note argues that laws authorizing coroners to remove bodily tissues from a cadaver without the consent of either the deceased or the next of kin, and without reasonable efforts to obtain such consent, violate due process and constitute a taking without just compensation.

*529 Part I reviews the social and legal background of organ donation, the evolution of the Uniform Anatomical Gift Act (UAGA), [FN3] and some recent constitutional challenges to nonconsensual appropriations of bodily tissue. Part II discusses the nature of the interests that exist in the human body and its constituent parts, and concludes that the body is property for purposes of the Constitution. Part III argues that the removal of bodily tissues without adequate notice and opportunity for objection by the next of kin violates the requirements of the due process clause. Part IV argues that, in the absence of just compensation, such removals run afoul of the takings clause.

I. "MY EYES ADOR[N]ED YOU":
[FN4] SOCIAL AND LEGAL BACKGROUND OF THE USE OF
HUMAN CADAVERIC TISSUE

The science of human organ transplantation has advanced considerably over the last 30 years. This has created a large unmet demand for transplantable organs. In an effort to increase the supply of such organs, all 50 states and the District of Columbia have adopted the UAGA, or some variant. The UAGA was designed to simplify the laws surrounding organ donation, to clarify which persons were authorized to grant consent for donation, and to define which circumstances required such consent. State laws that have gone the farthest in curtailing the requirements of consent prior to organ removal from the newly dead have occasionally come under attack by the next of kin. These attacks bring to the surface a number of issues surrounding the scope and nature of rights relative to the human body.

A. Technological Advance and the Uses for Human Tissue

Using the human body, or portions thereof, after the original *530 "user" is finished with it is not a new phenomenon. Cadavers have long been used for the advancement of medical and scientific knowledge, [FN5] and occasionally for commercial display. [FN6] The use of human hair for the manufacture of wigs also has a long history. [FN7] Rapid advances in the medical sciences beginning in the 1950s, and in genetic engineering since the 1970s, have dramatically increased the uses for and value of bodily tissues.

The first successful long-term transplantation of a human kidney took place in 1954. [FN8] In 1988 there were 9123 kidney transplant operations performed in the United States alone. [FN9] Many other organs and bodily tissues are also now transplanted, including the liver, heart, bone marrow, blood and blood components, corneal tissue, skin, nerves, hair and adrenal gland tissue. [FN10] Corneas, for example, can be transplanted into newborns who lack them at birth as well as into adults needing replacements. [FN11] With the development of new methods to *531 prevent the body's rejection of transplanted tissues, the possibilities for transplantation, as well as the number and success rate, are sure to increase.
In addition to the therapeutic uses of human tissue, the biotechnology revolution has opened up a host of potential research uses. Cell lines, developed from either healthy or cancerous human tissue, now serve as one of the most basic research tools. [FN13] Where the research is directed towards the development of drugs and other useful biological substances, the commercial value of human tissues greatly increases. [FN14] The potential market for cells and other by-products of human tissues is already valued in the billions of dollars, [FN15] and is likely to grow larger. The full impact of the biotechnological revolution is only beginning to be felt.
In the wake of the advances in science, the law has largely been left to play "catch up." Areas such as patent law, food and drug law, environmental law, family law and medical ethics have all had to make adjustments to the new scientific landscape. [FN17] The next section will focus *532 on one aspect of the law governing cadaveric organ donation. [FN18] This area presents the conflict between deeply felt concerns for the dead body and the continuing undersupply of human tissues needed to reduce death and suffering. As viewed against the backdrop of the increasingly commercialized fields of science and medicine, this conflict keenly demonstrates the need for an accommodation between old values and new technology.

B. Organ Procurement and the Uniform Anatomical Gift Act
As the success and utility of organ transplantation became apparent, society turned its attention to the problem of obtaining an adequate supply of organs. After many years of debate and considerable scholarly effort, [FN19] the National Conference of Commissioners on Uniform State Laws approved the Uniform Anatomical Gift Act in August 1968 ("UAGA(1968)"). [FN20] By 1973 all 50 states and the District of Columbia had adopted the Act or some variation. [FN21] In 1987, the National Conference approved an amended version of the UAGA (UAGA (1987)) [FN22] and a number of states subsequently have adopted it in whole or in part. [FN23] The 1968 Act remains the basic model, however, *533 and must be understood before considering the changes brought about by the 1987 Act.
The UAGA(1968) made a variety of advances in the law of organ donation, standardizing the process and removing some uncertainties about the scope of permissible donations. [FN24] Several of the more significant provisions expressly authorize donations for medical, research and educational purposes; [FN25] give priority to the wishes of the deceased; [FN26] and set out a prioritized list of the next of kin authorized to donate where the wishes of the deceased are unknown. [FN27] Under the 1968 Act it was assumed that absent explicit authorization for organ donation no organs could be removed for transplant. [FN28] The UAGA(1968) took no position on whether organ donation should be the subject of sales or *534 the exclusive result of gift giving. [FN29] The UAGA(1968) had no effect on the normal duties of the coroner, however, since the Act was explicitly made subject to the existing state autopsy laws. [FN30]
*535 The UAGA(1968) did not live up to its expectations for encouraging a sufficient supply of organs, however, and a chronic shortage of transplantable organs continued to exist. [FN31] One significant barrier was perceived to be the difficulty of obtaining consent for organ donation. [FN32] Although the requirement of consent was originally viewed as necessary to protect individual rights and to maintain public confidence in the developing practice of transplantation, it soon became a hindrance as the success of transplantation increased and the demand for organs grew. [FN33]
In an effort to overcome the problem of lack of consent where a healthy organ was available for transplant, two basic approaches were adopted: presumed consent and reasonable efforts to obtain consent. Each sought to strike a balance between society's need for organs and individuals' interests in their bodies or the bodies of their kin.
1. Presumed consent laws.--The basic feature of laws providing for presumed consent is that when a body is under the jurisdiction of the coroner, [FN34] she may authorize the removal of corneal tissues or pituitary glands where: (1) a request for such tissue for the purposes of transplant or therapy is made by an authorized recipient; (2) the removal would not interfere with the course of an autopsy or other investigation; (3) the removal would not alter the deceased's facial appearance; and (4) no objection by the deceased or the next of kin is known by the coroner. [FN35] This fourth element merely requires the absence of positive *536 knowledge of objection; it does not require the coroner to make any inquiry about the preferences of the deceased or her next of kin. [FN36] The laws also shield the coroner from liability in the event that after removal the family sues claiming that their consent was required. [FN37] A small number of states have also adopted laws that appear to make consent almost entirely irrelevant.
2. Reasonable efforts to obtain consent.--A second group of laws, including the UAGA(1987), limits the coroner's discretion by requiring *537 reasonable efforts to notify the appropriate persons and obtain their consent for donation. [FN39] Only after such efforts have failed may the coroner independently authorize the removal of organs or other tissues. While most of the previous group of presumed consent laws apply only to corneas or pituitaries, the UAGA(1987) made a significant break with the presumed consent laws by including all organs within its "reasonable efforts" provision. This may be the most significant variation between the UAGA(1987) and the UAGA(1968). [FN40] In addition, this group of laws usually contains a "required request" provision directing hospitals to inquire into the willingness of the next of kin to authorize a donation where the wishes of the deceased are unknown. [FN41]
*538 The largest group of states, however, has taken no action to reduce the consent requirement and still adheres to the original version of the UAGA, which does not permit the removal of organs for donation in the absence of authorized consent. [FN42]In most instances these states have adopted a required request rule as their sole means of coping with the difficulties of obtaining consent under the prior law. [FN43]
Those states that have adopted presumed consent laws present the greatest constitutional difficulties. Very little case law is available on this issue, however, because there have been only a handful of lawsuits challenging such laws.
C. Challenges to Presumed Consent
Three state courts have considered constitutional challenges to presumed consent laws. [FN44] In all three instances the statutes were upheld. The most thorough consideration given to this issue to date was by the Florida Supreme Court in State v. Powell[FN45] which involved a suit by the parents of an auto accident victim whose corneal tissue was removed by the medical examiner without obtaining consent. The lower court found the law unconstitutional on the grounds that it violated procedural and substantive due process, deprived the next of kin of equal protection and constituted a taking of private property for a nonpublic purpose. [FN46]
The Florida Supreme Court reversed. After noting the rational policy of the statute and the minor physical invasion of cornea removal,[FN47] the court held that there were no property rights in a dead body [FN48] and therefore no unconstitutional taking had occurred. The court further held that whatever common-law interests relative to burial may exist, these did not rise to the level of constitutionally protected liberty interests, and therefore did not raise due process concerns. [FN49] An extended dissent faulted the majority for taking such a narrow view of the rights of the next of kin. [FN50]
The other two cases took substantially the same approach.[FN51] The *540 common theme uniting these decisions is the conclusion that whatever rights may exist relative to the dead human body, such rights do not rise to the level of constitutionally protected interests. All three cases acknowledged the existence of a substantive "quasi-property" right relative to the body, but held that such rights were not property or liberty in the constitutional sense. No further consideration of the constitutional issues was undertaken. While recognizing that state law generally protected the next of kin's rights against invasion by third parties, none of the courts provided any analysis distinguishing government invasions from the otherwise general rule.[FN52]
The recent case of Moore v. Regents of the University of California [FN53] casts doubts upon the correctness of these decisions. John Moore, an individual suffering from hairy cell leukemia, had an operation at the UCLA Medical Center to remove his spleen.[FN54] Having removed it, the doctors, allegedly without Moore's informed consent, used it to produce a cell line that they later patented. Discovering this, Moore sued the doctors for (among other things) conversion. [FN55] Reversing the trial court's dismissal of the claim, the California Court of Appeals held that Moore had a property right in his spleen sufficient to sustain a cause of action for conversion. [FN56]
The rationale of the California Court of Appeals was that advances in science have so altered society's relationship with the human body that the legal system must recognize the change and adapt accordingly.
Until recently, the physical human body, as distinguished from *541 the mental and spiritual, was believed to have little value, other than as a source of labor. In recent history, we have seen the human body assume astonishing aspects of value. . . . For better or worse, we have irretrievably entered an age that requires examination of our understanding of the legal rights and relationships in the human body and the human cell. [FN57]
It went on to discuss the different rights recognized in the body and its separated parts, distinguishing the various limitations of those rights as reflecting "public health concerns, rather than a legislative policy against a property interest in a living body." [FN58] Drawing upon a broad spectrum of cases involving rights relative to the body, the court held that the various "rights of dominion" recognized over one's body "are so akin to property interests that it would be a subterfuge to call them something else." [FN59]
The one dissenting justice took the position that human body parts were nowhere to be found in the California statute, and found too few similarities to some of the more traditionally recognized items of property such as household furniture, evidences of debt or the gizzards of domestic poultry. [FN60]In concluding his discussion of this issue, the justice noted his reluctance "to extend the constitutionally sanctified right of property . . . to the refuse found on the floor of the barbershop or nail salon, in the hospital bedpan, or in the operating room receptacle." [FN61]
The particular substantive rights considered in Moore were similar to those recognized by the Florida, Michigan and Georgia courts, but *542 the Moore court's willingness to attach the label "property" to those rights suggests the need for closer analysis.

II. "MY HEART BELONGS TO DADDY": [FN62] PROPERTY RIGHTS IN THE BODY

There are many rights that exist relative to the body. Some rights date back to early common-law rules against physical invasions, others are of more recent statutory origin. For constitutional purposes it is important to differentiate between property and liberty because the type of protection afforded depends upon which category of rights is involved. [FN63] If one looks to the method the Supreme Court uses to categorize rights, one concludes that, taken together, the rights existing in the body may be considered property rights. Since property for the purposes of the due process clause may differ from property for the purposes of the takings clause, the two will be considered separately.
The various rights that exist relative to the body will initially be catalogued, focusing on the substance of the rights that exist rather than what name attaches. [FN64]Two ancillary questions should be kept in mind during the course of discussion: to whom do these rights belong and against whom are they operative? The answers to these questions help when confronting the problems of who is a proper plaintiff for any taking or due process violation, and whether presumed consent laws eliminate or infringe upon existing property rights.[FN65]
*543 After analyzing the substance of these rights, the rights must be properly categorized. In doing this, a variety of contentious issues must be addressed such as what is property, how are property and liberty different and is there a difference in what is considered property for the due process clause as opposed to the takings clause.

A. Substantive Rights Existing Relative to the Body
A variety of rights relative to the body exist under state law. These can be broken down into several groups: (1) common-law rights involving burials and autopsies; (2) modern statutory rights concerning the dead body, most notably the UAGA and its variations; (3) rights involving parts of the body that are no longer connected to the whole body; and (4) rights concerning living bodies.
1. Common-Law Rights in Cadavers. -- The current rule at common law is that the next of kin have the right to possess the dead body for the purposes of burial or other disposition. [FN66] The right is typically characterized as one for possession of the cadaver, in undisturbed condition, and gives rise to actions such as wrongful autopsy and wrongful possession of the body.[FN67] Although there has been considerable dispute and evolution concerning its proper classification, this right has a long and historic pedigree. [FN68] Because the right to possession is limited to possession for the purpose of burial, many rights are excluded from the common-law formulation. For example, the next of kin are not allowed to sell the cadaver [FN69] and the right to dispose of one's own body by will is given only limited recognition. [FN70] Some of these common-law limitations have subsequently been changed by statute.[FN71]
*544 2. Statutory Rights in Cadavers. -- A more explicit source of rights in the body is the UAGA and its various state-law incarnations. Each of these laws provides that either the decedent or the next of kin has the right to direct the disposition of the cadaver, either to a donee planning some further use or for burial. At least one court has cited its state's Anatomical Gift Act as a source of property rights. [FN72]
One notable limitation on the rights in the dead body is the ban on the sale of organs established by the National Organ Transplant Act [FN73] and numerous state-law counterparts. [FN74] While these laws forbid a considerable portion of conceivable transactions in human bodily tissues, the exact scope of the ban is somewhat unclear and some transactions may be permissible. [FN75]
3. Rights in Separated Parts of the Body. -- There are a variety of commercial interests in body parts. These rights typically belong to the individual whose body parts are involved or to persons in subsequent possession of those parts upon transfer. Sperm, blood and hair may all be sold, [FN76] and are objects of the various other rights traditionally associated*545 with property. [FN77] Where someone particularly famous is involved--Elvis Presley, for example--a lock of hair may be a more valuable piece of property than a moderately priced Italian suit. [FN78] Likewise, there is little doubt that if the jawbone of Australopithecus Man were purloined from the museum where it lay, the cry of "THEFT!!" would not be slowed by an uncertainty over whether property was involved. The rights in these separate parts do not seem to depend on whether the original owner is still living, and thus are applicable to cadavers. [FN79]
The case of Moore v. Regents of the University of California, [FN80] involving rights in a severed body part, also provides a useful example of the extent of state-law rights in body parts. >[FN81]
4. Rights in the (Intact) Living Body. -- The rights to possess, use and exclude others from one's body while one is alive are all relatively evident. [FN82]The right to possess one's own body can be seen in the prohibition *546 of slavery and involuntary servitude,[FN83] and in the civil and criminal penalties for false imprisonment. [FN84] The right to use one's body is evident in the simple employment contract and in the reluctance to require specific performance when such contracts are breached. [FN85] Finally, the civil and criminal penalties for battery provide evidence of the right to exclude others. [FN86]
These rights, of course, are not absolute. Significant limitations exist on both the right to use and the right to exclude. Laws prohibiting prostitution and sodomy limit the right to "use" one's body as one sees fit. [FN87] Likewise, vaccination laws and forced caesareans, not to mention the entire debate surrounding abortion, present examples of limits on the right to exclude. [FN88]>
*547 B. Categorizing Bodily Tissues as Property Under the Federal Constitution
The rights that exist under state law must still be given a collective name in order to analyze them properly. Taken separately, some rights may bear a greater resemblance to liberty and others a greater resemblance to property. Taken together, however, the rights in the body form a substantial whole that results in something greater than the sum of each individually.
1. Defining Property Under the Due Process Clause. -- The basic approach for giving content to the word "property" in the due process clause was set out by the Supreme Court in Board of Regents v. Roth. [FN89] Justice Stewart, writing for the majority, proclaimed that
[p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-- rules or understandings that secure certain benefits and that support claims of entitlements to those benefits. [FN90]
While the actual substance of an individual's rights are determined by reference to such independent sources, the ultimate characterization of those rights as "property" is a matter of federal law. [FN91] This can be seen from the cases holding that a variety of public entitlements, such as welfare [FN92] or social security benefits, [FN93]which the state legal system might not formally characterize as property, are nonetheless "property" for the purposes of the due process clause. [FN94] No systematic method of classification for different rights has yet been expounded by the Supreme Court. The decided cases represent an ad hoc approach, labeling as property any sufficiently important interest recognized by *548 state law.[FN95]
For the observer searching for a method of analysis, two approaches present themselves. One possibility is an examination of the general notion of property under the common law as a background against which the Court can be presumed to operate. Although the federal definition is by no means limited to such a general notion--it in fact goes far beyond that notion [FN96]--it at least lends some historical continuity to the endeavor. The second approach, to be used in conjunction with the first, is reasoning by analogy. Looking at those interests which have been protected as property by the Court, one asks whether the rights in the body are sufficiently similar to warrant like treatment. This method allows for the more expansive interpretation of property given by the Supreme Court and covers those interests missed by the first method. [FN97]
a. Bundles and Twigs. -- In Anglo-American law the notion of property is most often understood to mean those rights that a person possesses relative to a thing. [FN98] Rather than being viewed as a unitary right, property is seen as a bundle of rights. [FN99] Some of the rights relative to *549 things that have been historically associated with property are the rights of possession, exclusion, use and disposition, the right to enjoy fruits or profits, and the right of destruction. [FN100] A person need not possess all of these rights relative to any given object in order to have property rights. In fact, the common law has consistently defined property as including such things as leaseholds, mineral rights and bailments.
The view of property as a bundle of discrete twigs creates a problem of perspective. Determining where the bundle ends and individual twigs begin can be a difficult task, especially because any given twig can invariably be subdivided further and thus portrayed as a bundle. [FN101] Professor Radin has labeled this the strategy of "conceptual severance. [FN102] The difficulty of pursuing this strategy is that any government action restricting the use of property would be converted into a complete destruction of some property right that could be conceptually severed from the larger bundle. [FN103] This would severely handicap the government in its performance of even rudimentary regulatory functions. A more realistic approach would define the proper bundle in a practical manner and not treat the Constitution as a logical syllogism.[FN104]
Property rights have never been viewed as absolute, however, and are subject to the implicit (and often explicit) limitation that they may not be exercised so as to interfere with another person's property rights. [FN105] Pursuant to this view, laws which limit the inappropriate use of property can be understood as either definitional, denying the presence of certain property twigs ex ante, or as justified under the police power, trumping rights which are otherwise present. It is well to consider this limitation on the concept itself when viewing the various restrictions placed on the rights in the human body.
In light of this first approach to defining property, the rights relative to the body should be characterized as property. Those rights include *550 the rights to use, possess, exclude, sell (at least under limited circumstances) and destroy (cremation). [FN106] The right to exclude is particularly important in this analysis since it consistently has been recognized as the central element of the modern notion of property. [FN107] This rather substantial bundle of rights, while falling short of full commercial ownership due to the limited right to sell, is thus consistent with a general common-law approach to defining property. [FN108]
*551 A common argument made against the view that one's body is property is that there is no general right to sell the body and therefore it lacks an essential attribute of property. While conceding that one does not need all twigs in order to have a property interest, some critics think that this particular twig is so important that its absence is sufficient to deny the label property to the remaining bundle. [FN109] This view is unwarranted, however, because there are acknowledged forms of property that cannot be sold.
The right to sell is not necessarily tied to the notion of property. The Supreme Court, in the case of Andrus v. Allard, [FN110] indirectly made this point by holding that a ban on the sale of eagle feathers lawfully acquired-- physical objects that are concededly the object of property rights--was not a taking of property under the fifth amendment. The Court noted that the owners of the feathers still possessed numerous other twigs in their bundle of rights and hence their property, though diminished in value, had not been taken. [FN111] Other items considered property under a basic common-law approach, but which are not alienable, include certain licenses, [FN112] drugs for restricted use [FN113] and, under some circumstances, leases.[FN114] While the common law certainly disfavors restraints on the alienation of property, the occasions where it tolerates such limitations are not viewed as a denial of the underlying property interest.
b. Birds of a Feather. -- The second method for identifying federally *552 defined property requires an examination of some additional interests held to constitute property. Due process jurisprudence recognizes certain property rights that are not viewed as property at common law. Government entitlements such as welfare and social security disability benefits have been held to be property for the purposes of due process. [FN115] This is so even though the individuals seeking hearings had at best uncertain claims to continued receipt and lacked a number of traditional twigs, such as the right to sell or transfer the entitlement or the right to pass it on through descent or devise. Combined with the additional conditions placed on continued possession of the entitlements (poverty or disability), the scope of the property rights dwindles further. Such rights are also intangible, and thus one step removed from the more common and traditional understanding of property as relating to a tangible res. [FN116]
Expectations of job tenure based upon custom [FN117]or state law allowing termination only "for cause [FN118] have also been held to constitute property for due process purposes. These rights are very similar in scope and nature to the rights to government entitlements. The inclusion of reasonable expectations, based not upon a state statute, but rather upon common practice or custom, as a source of property rights indicates that the notion of property is quite expansive. The reasonable expectation that the body is subject to the exclusive control of the individual or her next of kin may serve as a basis for calling the body property. While the state could certainly alter such expectations by passing an appropriate statute, the same is true of the more generally accepted bases of property rights, such as existing statutes and common law. Where the state undermines an individual's expectations only with respect to whether the state can control her body, but not with respect to her control as against third parties, a property right still should exist if the restrictions on state behavior towards property are to have any content at all. [FN119]
Finally, the Supreme Court has considered there to be a property right in something as limited as a possessory interest in chattels whose title was vested in a third party. In Fuentes v. Shevin, [FN120] the Court considered whether prejudgment replevin provisions in Florida and Pennsylvania violated the due process clause of the fourteenth amendment. The replevied goods included various household goods to which the appellants lacked full title. [FN121] In holding that even the limited right to *553 possession constituted "property," the Court stated that " t he Fourteenth Amendment's protection of 'property,' however, has never been interpreted to safeguard only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to 'any significant property interest,' . . . including statutory entitlements."[FN122]
When compared to the various interests that the Court has considered property, rights in the body stand up rather well. They relate to a tangible item, and while not including every twig of the conceivable property bundle, they include more twigs than some interests which have received protection. Additionally, these rights have been recognized at least as quasi-property under state law, unlike many of the now protected interests that would not have been called property of any type. Here the analogy to cadavers is quite strong because the right most consistently recognized by state courts is the next of kin's right to possession for the purpose of burial. The right to possession is one of the classic property interests, and thus meets the Court's criteria for protection.
c. Property or Liberty?. -- Viewing property rights in the body as resting initially with the living individual provides continuity in ownership and a larger conceptual framework from which to analyze the organ removal laws. This approach creates some difficulties, however, since many of the rights in a living body have long been viewed as liberty, not property. It would be anamolous for a liberty interest to suddenly transform into a property interest on the simple occasion of death. An explanation that accounts for the existence of both liberty and property interests in a live body is then needed in order to reconcile the change in the legal treatment of the body at death.
In disentangling the rights in the body, it is important to distinguish between the concepts of "person" and "thing." Liberty is a right persons have relative to themselves and property is a right they have relative to things. This distinction is not easy, however, because the problem of defining the concept of self has plagued philosophers for centuries. [FN123] A number of recent developments in the law, however, have made this task easier from the lawyer's, if not from the philosopher's, perspective. One of the most important developments reflecting on society's notion of a "person" has been the adoption of brain death rules by a majority of states. [FN124] When a person has irreversible *554 termination of brain function, that person is legally dead--the "person" no longer exists. The law thus views the primary defining characteristic of a person as the capacity (or at least the possibility, however remote) for mentation.[FN125] This approach provides a convenient line for separating persons and things, and thereby distinguishing self-reflecting personal rights (liberty) from rights relative to things (property). Harm to the thinking being infringes on a liberty, harm to the physical body infringes property.
At first glance, this approach may not seem wholly satisfactory. An assault on one's physical being, say a punch in the arm, has always been viewed as an infringement of a personal right, a battery. How can this be so if the person is defined as the thinking being rather than the physical one? The answer is that there are some physical objects that are so closely integrated with a person that an assault on the object is also an assault on the person. [FN126] The justification behind many personal torts is the effect they ultimately have upon the mind, or the "person," *555 within the physical body. [FN127] That some physical objects become the repositories of personal rights, as well as property rights, is not such an unusual concept; simply knocking a person's hat off, or a book from her hand can constitute a battery in addition to a trespass to chattels, even though her body itself remained untouched. It is the circumstances of an object's association with the underlying mental entity that determines whether personal rights are implicated. [FN128]
One primary distinction, therefore, that separates liberty from property is the degree of integration with the mental entity that is recognized as the person. Actions that harm the person in a relatively direct manner are thus viewed as also affecting personal rights. Actions which interfere with the person's relationship with a nonintegrated thing affect only property rights. A live body, integrated with the person, is an appropriate object of both property and liberty rights. A dead body, having been de-integrated from the person who once animated it, seems a more appropriate object of property rights alone rather than liberty.
Both the scope and nature of rights in the body often exceed (in the direction of being more traditionally property-like) the scope and nature of those rights that previously have been recognized as property for the purposes of due process. While the body may once have lacked the commercial characteristics often associated with property, changing circumstances are emphasizing these very characteristics. The Moore case sharply highlights the notion that one person's refuse heap is another person's goldmine. [FN129] As scientific advances lead to increased use of, and consequently demand for, human tissue, the body will continue to take on the functional characteristics of property. [FN130] It is this *556 change, coupled with the numerous property-like rights already existing relative to the body, that led the Moore court to find the existence of a property right. This reasoning applies equally well in the situation where the original "owner" has been separated from her body entirely. Given the importance of these rights and the wide scope given to the concept of property under the due process clause, the courts should acknowledge that the rights in the body constitute property. The property right would initially vest in the individual while alive, and pass either to a specific devisee or to the next of kin upon the individual's death.
2. Property Under the Takings Clause. -- An apparent difference exists between property for due process analysis and property for takings analysis. This difference runs roughly along the lines dividing the "new property" [FN131] (covered by the due process clause) from the more traditional common-law property (covered by both the due process and takings clauses). [FN132] Where "new property" rights, such as an entitlement to social security benefits, are involved, the government is free to terminate such future entitlements without compensation by changing the underlying statute which provides the initial right. [FN133] Where traditional property rights such as those in land are involved, the government's attempt to significantly alter the underlying right, even through an across-the-board change in the governing law, may require that compensation be paid. [FN134]
One possible explanation for the different treatment of the new property can be found in the standard set out by Roth for determining what constitutes property. There the Court indicated that while state law was one source of underlying property rights, it might not be the only one. [FN135] Thus, in situations which involve property under the takings *557 clause, some alternative source of substantive rights, such as common law, may be setting a floor below which even positive state law may not drop when altering the definition of property without paying for the change.[FN136] When looking at the "new property," no such alternative basis or floor can be found, and hence when the very statute that creates the property interest is substantively modified, no claim can be heard that something has been taken since that something no longer exists by definition.[FN137]
Another explanation of the apparent distinction is to hold a unified conception of property, [FN138] but to recognize a difference between the concept of a taking and a deprivation, the latter being a much broader notion. Thus, redefining the organic law that creates the property interest in the first place may constitute a deprivation, [FN139] but not a taking.[FN140] The other side of this distinction is that actions that are in *558 opposition to the generally applicable organic law will necessarily implicate property under the takings clause, even in cases of the "new property." For example, if the government passed a law that Mr. Smith may no longer receive his social security benefits, not because he failed to meet any of the statutory criteria, but merely because it wanted to give the money to some worthy public cause, presumably that would constitute a taking of Smith's property.
Perhaps the reason it is so infrequently recognized that the "new property" is also protected under the takings clause is that the government almost never seeks to deprive someone of benefits as against his rights. [FN141] Whenever this occurs unintentionally, benefits are restored as soon as it is discovered, hence no "taking" ever occurs. [FN142]
With these distinctions in mind, what remains is to decide whether the rights relative to the body can be classified as property for the takings clause. The state-law foundations of the rights in the body have already been discussed in the context of due process. If there is no difference in the property covered by the two clauses, then there is no need to go further. Alternatively, if the takings clause only applies to property with a deeper historical element providing its organic basis, the rights discussed earlier should be examined once more with a particular eye to traditional expectations, and then compared to property that has explicitly been covered by the takings clause.[FN143]
*559 The rights that exist relative to the body bear a strong resemblance to those rights traditionally categorized as property rights by the common law. This plays a somewhat greater role under the takings clause because entitlement-like rights are often treated with less solicitude in this context. The rights of possession, use, exclusion, destruction, profit (to a limited degree), disposition and a form of descent and devise all exist relative to the body. Also, a number of these rights have a strong common-law history, though under a different name than property, and thus in substance may be deserving of the higher level of protection that seems to be associated with common-law foundations.
One's body could also be analogized and compared to one's car, house or favorite set of eagle feathers, all of which are considered property under the takings clause. In Hodel v. Irving, [FN144] the removal of the right to pass on, through descent or devise, small undivided interests in Indian land was held to constitute a taking. If one views the property involved as the interest in the land itself, and all the rights associated with it, the decision makes little sense. If, however, one views the property interest at stake to be the right to pass on the undivided interest, and that right alone, then the government's action has destroyed that property in its entirety and the finding of a taking makes perfect sense. [FN145] Viewed this way, some very limited

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