Scribd
Upload
8 views8 pages

Contemporary Issues in Property Law

The document discusses contemporary issues in property law, focusing on the protection of cultural property, land tenure security, digital property, property rights in human biological materials, and surrogacy arrangements. It highlights historical injustices, disparities in land ownership, and the evolving legal landscape regarding digital and biological property rights. Additionally, it addresses the legality of surrogacy agreements in Kenya and the complexities surrounding parental rights transfer.

Uploaded by

ian.lutaaya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
8 views8 pages

Contemporary Issues in Property Law

The document discusses contemporary issues in property law, focusing on the protection of cultural property, land tenure security, digital property, property rights in human biological materials, and surrogacy arrangements. It highlights historical injustices, disparities in land ownership, and the evolving legal landscape regarding digital and biological property rights. Additionally, it addresses the legality of surrogacy agreements in Kenya and the complexities surrounding parental rights transfer.

Uploaded by

ian.lutaaya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 8

Contemporary issues in

property law
Dr Francis Kariuki, C.Arb
Protection of cultural property
• Historical injustices faced by communities.
• Property and heritage laws are state-centric.
• Access and control of cultural property by communities?
• Communities’ rights vis-à-vis state obligations?
• How do we right the wrongs?
Land tenure security
• Gross disparities in land ownership and inequitable distribution of
land
• Historical land injustices that remain unresolved
• Rapid population growth and urbanization
• Forced evictions
• Illegal and irregular allocation of land rights
• Over-politicization of land and ethnic clashes
• Political goodwill in implementing land reforms
Digital property
• Refers to electronic information one creates or owns stored either
online or in an electronic storage device.
• It includes files, codes, passwords needed to access digital files,
virtual currencies (cryptocurrencies), websites, blogs, domain names,
social media pages etc.
• Risks involved with digital property?
Property rights in the body or body parts
1. Preserved human biological material
• Different people and institutions have various interests in human
biological materials each wanting access to or control of them.
• Researchers, medical practitioners, patients, families, the community and the
police.
• For centuries, in Australia and England and Wales, individuals did not
have any proprietary interests in their excised tissue, but subsequent
holders of preserved tissue might have.
• However, in Jonathan Yearworth and others v North Bristol NHS Trust (2009)
the Court in England held that the appellants, who had deposited semen
samples for freezing before they undertook cancer treatment, had “for the
purposes of a claim in negligence … ownership of the sperm which they had
ejaculated”.
• Similarly, the Supreme Court of Queensland, Australia, in Bazley v
Wesley Monash IVF (2010) took a property-based approach to
determine how a semen sample stored shortly before death
should be dealt with. The Court opined that the co-executors of
the estate had sufficient proprietary interests in the semen to
legally demand its return from the laboratory where it was held.

• The New South Wales Supreme Court in Joceyln Edwards; Re the


estate of the late Mark Edwards (2011)similarly found that the
widow of a recently deceased man had a right to possession of his
semen.
• In Kenya, the Human Tissue Act person about to die can specify in his
will that his body or part be used after his death for therapeutic or
medical education or research purposes.
• S. 80 of the Health Act prohibits human organs transplant except if done in a
duly authorized health facility and on written authority of medical practitioner
or person from whom tissue or gametes are removed.
• S. 81, Health Act-one can make a will donating his body or any specified tissue
to be used after his death or give consent to the post mortem examination of
his body.
• However, one must nominate an institution or a person as done otherwise
donation is null and void.
Surrogacy arrangements
• Surrogacy agreements
• Surrogacy agreements are legal and valid in Kenya.
• In re MMCH (Child) (Adoption Cause 105 of 2021) [2022] Justice W. Musyoka opined
that surrogacy arrangements are valid ‘… so long as they are entered into freely by
consenting adults and are in the best interests of the child the subject of the
arrangements.’
• A surrogate mother remains the mother to a child until the parenthood is
transferred through a parental order or adoption-A.M.N & 2Others vs AG &
5 Others [2015] eKLR.
• Surrogacy adoption-where the genetics parents of the subject child are
seeking to adopt the child from the surrogate mother.
• Generally, in the Kenyan Jurisdiction there is no law that governs surrogacy adoption
see In re Baby NNM (Adoption Cause E083 of 2020) [2023].
• A parental order-allows for the transfer of parental rights/parenthood
from surrogate mother to the commissioning woman.

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy