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Baby's Blood - Property Rights

The paternity blood-access ruling highlighted in the Auckland High Court last week seems to raise property as well as privacy issues. John Howard, who is the head researcher for the Magna Carta Society, says.

As recently as 1988 the New Zealand Parliament again enacted into law the Imperial Laws Application Act, in particular, Chapter 29 of 25 Edw I (Magna Carta) 1297.

That Chapter states " No freeman shall be......disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by the lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."

A discretionary decision of a government organisation is not the "law of the land".

An interpretation of Chapter 29 was provided in the Australian landmark case Ex parte Walsh and Johnson; in re Yates (1925) 27 CLR 39,79 Isaacs J.

"Chapter 29 of Magna Carta recognises three basic principles namely, (1) Primarily every free man has an inherent individual right to his life, liberty, property and citizenship; (2) his individual rights must always yield to the necessities of the general welfare at the will of the State; (3) the law of the land is the only mode by which the State can so declare its will."

There does not appear to be any "law of the land" by which the State has declared its will in this matter or which expressly extinguishes the baby's right to the property - the blood.

Whose property, therefore, is the stored blood? The baby's, the parents or the State? That is surely the central question.

It should not be too hard to argue that the blood is the property of the baby. Perhaps even the parent, but then, the Commissioner for Children might have something to say about that.

It appears there is already legislation through Magna Carta which protects the property rights of the baby and there is no other law which explicitly extinguished that right.

Email: magnacarta@minidata.co.nz


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