Tattoos: They Really Are Permanent
Recently the National Association for the Preservation of Skin Art has announced that, for a small fee they will preserve your body ink after you die, serving it up as a memento for your nearest and dearest by preserving your tattoed skin in a frame.
This may seem like a rather strange bequest under a Will. However, with the increasing popularity of tattoos, many individuals spend thousands of dollars to creatively express themselves and one can understand why they want these works of art passed to their loved ones after they die.
However, is this even legal?
Since 1990, as a result of a well-known American case, Moore v Regents of California there has been a well-established rule which states that there can be no property in a human body and this includes all human tissue such as skin.
Property is a right in or to a thing or an object. In other words, individuals do not own property; they own or hold property rights in relation to a tangible or intangible thing or an object.
The basis for not allowing property rights in the human body is because of the question, how can a person be the subject holding property rights as well as the object of property rights?
In Australia however, the answer is murkier. In the 2010 WA case of Roche v Douglas, Master Sanderson stated that, “it defies reason not to regard the tissue samples as property. Such samples have a real psychical presence. They exist and continue to exist until some steps are taken to effect destruction. There is no purpose to be served in ignoring physical reality… There is no rational or logical justification for such a result.”
In the recent High Court of Australia case, D’Arcy v Myriad Genetics Inc the court held that that genetic materials in their isolated form (DNA or RNA) are not patentable in Australia.
Under a Will you can only bequeath the property to which you have a right in as at the date of your death.
There is also an exception to the rule that there is no property right in the human tissue outlined in the 1908 case of Doodeward v Spence. This case established that if a person lawfully exercised work and skill to preserve human tissue, there would be property rights attached to that tissue, belonging to the individual exercising the skill.
Could this mean that the National Association for the Preservation of Skin Art holds the property interest to the preserved tattoed skin, which is then purchased back from them by the donor when he or she is still alive?
No doubt these issues will make themselves more clear in the future.
For now, should you have any queries in relation to bequeathing property (even preserved skin!) in your Will or estate planning in general, please don’t hesitate to contact us.
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