Today’s post was inspired by an email from Frank, who asks:
Does Wolverine own his bones? Does Captain America own his shield?
Both of these characters are military agents granted items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).
Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?
These are interesting questions! We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities. I’m going to address Captain America first, since it’s the easier one to answer.
I. Who Owns Captain America’s Shield?
The answer seems to be “the US military.” This is true of other military-issue equipment, including weapons and body armor. And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).
So that’s that. On to the much trickier case of Wolverine.
II. Who Owns Wolverine’s Bones?
Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves. In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist. The patient still has all of his or her parts, there are just some new bits added.
Normally the patient owns those bits, however, and they are just like any other piece of personal property. In the UK, for example, “on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.” Department of Health and Social Security Health Notice HN(83)6 (1983). The situations appears to be the same in the US, although I was unable to find such a specific statement. I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.
(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues. The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof. See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)
So under normal circumstances, Wolverine would appear to own the adamantium in his body. But these are not normal circumstances. Wolverine was a soldier, but he was also brainwashed by the Weapon X project. So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.
But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine? Is it even possible for someone to own a part of another person’s body? What if it can be removed without (permanently) harming them?
These are interesting questions with no clear answer. At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.” Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997). I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.
Another approach is to consider not the property right but the remedy. Supposing that the Canadian government did own the adamantium, how could it enforce that right? It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia. It seems doubtful that a court would order such an operation. Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards. Washington v. Harper, 494 US 210 (1990). I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.
Not all superhero equipment is created equal, even equipment that came from the military. Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!