사람의 신체와 법 - 자율성의 원리와 호혜성의 원리의 조화방안에 관한 입문적 고찰 -

Abstract

Since modern times the law has been able to respond to most legal disputes over human bodies by the proposition that the body is not property and therefore cannot be owned, bought or sold. But as technologies develop and bodies become potentially valuable resources, complex disputes over the ownership of body and commercial dealings in body are increasingly being raised, because the conflict between legal regulation as system of values and markets as systems of demand and supply is particularly problematic in the domain of the scientific dismemberment of human bodies. In this context this paper aims at the possibilites and objections in considering the sale and donation of organs and the other body parts. At a very simple level legal commentators tend to divide into two camps. There are those who argue that the principle of autonomy is a fundamental one in our law and that people should be free to donate or sell their bodies or parts of their bodies as they wish. On the other hand, there are those who argue that the body should not be commercialised and the law must restrict extreme misuse of the body in order to uphold its unique status. There are two objections against selling and buying body parts: one is the commodities objection and another is exploitative objection. Even if the commercial use of body parts or particles raises serious ethical questions, and organ transplant sales are not like the sale of other body parts such as hair, neither of objections against commercialization are strong enough to undermine the possible sale of body parts, although they to point to the necessity of regulating organ sales. For that reason, it is high time to change the traditional understanding of law in relation to the body.