Commercialization of Separated Human Body Parts - Unpacking Instrumentalization Approach

The principle of non-commercialization, which prohibits trade in separated human body parts, has long been firmly embedded in many European legal orders and has become an integral part of them. However, many new uses for human biomaterials have now been discovered, and the need for them has reached a historical climax. This paper aims to explain the main tenets of non-commercialization theory, including such principles as human dignity and need to protect human’s health, and to show that these categories have so far been understood in a very one-sided and visceral way, and largely in contradiction to their true spirit. We will not dwell on a critique of the existing approach, but will propose an instrumental approach to human health based primarily on the will of the individual.

At the end of this paper, we will describe possible legal constructs through which the market for separated human body parts can function, and the outcomes of adoption of one or another model.