Proprietary Rights in Human Tissue

Date01 January 2013
Author
Proprietary Rights in Human Tissue
ROBERT VARD1
Part I. The Legal Status Quo of Human Tissue:
Institutionalised Inadequacy
It is to be observed, that in every sepulcher, that hath a monument,
and the sepulture or burial of the dead, the burial of the cadaver (that
is caro data vermibus) is nullis in bonis and belongs to the ecclesiastical
cognisance”.2
Introduction
Are other people capable of possessing ownership rights over one’s human
body parts? One could be forgiven for regarding this statement as little more
than a rhetorical question, since to answer yes would seem to have the effect
of placing oneself on the very edge of an ethical precipice. Nevertheless,
circumstances dictate that this question now receive close attention, both
from legislators and the public at large. Certainly this is a topic that inspires
passionate rhetoric, but warnings about the dangers of recognising property
interests in human tissue presuppose that such tissue has not yet been commodif‌ied.
Furthermore, the legal status quo ignores compelling evidence that the
authorisation of the f‌inancially incentivised movement of separated biological
material may be of substantial social and scientif‌ic benef‌it in its own right.
Take for example the case of Ted Slavin, a haemophiliac whose blood was
found to have a high concentration of antibodies to the Hepatitis B virus.
He marketed his blood for up to $10 per millilitre to commercial organizations
while providing it free to non-commercial hepatitis researchers. Slavin later
formed a company that not only marketed his own blood, but that of others
with rare blood characteristics. Before his death in 1984, his blood benef‌ited
research on the development of a hepatitis vaccine and prevention of liver
cancer. Clinical researchers who used Slavin’s blood have acknowledged that
1
Robert Vard M.A., LL.M. Part of this Article was submitted as my Dissertation in
partial fulf‌ilment of the requirements for the degree of LL.M. in Law, Trinity College
Dublin 2010. I wish to express my sincere gratitude to my supervisor Professor William
Binchy, not merely for his support and advice, but also for affording me the benef‌it of
his wisdom and experience with respect to the legal profession as a whole.
2
Sir Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning
High Treason, and Other Pleas of the Crown, and Criminal Causes (London, 1809),
p.203
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Proprietary Rights in Human Tissue 101
it greatly contributed to biomedical research efforts.3 This is by no means a
singular example. Indeed, but for one man’s perseverance that his unique
cells should be the subject of scientif‌ic research, a signif‌icant breakthrough
with respect to research into the cure for HIV may never have materialised.4
If the law enabled a person to possess a f‌inancial incentive (i.e. the opportunity
to personal f‌inancial prof‌it) to advance respected scientif‌ic research then it is
at least arguable that the social utility of such a law may outweigh any negative
effects that may arise from its existence.
However, apportioning f‌inancial rewards between patients and researchers
is merely one aspect of the growing controversy. Establishing who is entitled
to a legal right of control over separated biological materials is just as important
as deciding who has a right to prof‌it by them, as evidenced by the organ
retention scandals that have occurred both in Ireland and in the United
Kingdom in recent times.
5
However, under the traditional rules of the common
law it has long been accepted that there can be no property in the human
body or its parts. But is this not a fallacy that denies the reality of the situation?
Property rights are indeed routinely granted, but often to the exclusion of
the individual from whom the material is taken. One could argue that the
intellectual debate is hamstrung by the ambiguity surrounding two crucial
issues, namely the objects over which property rights extend and the nature
of property rights itself. This lack of a universal def‌inition of a property right
in part stems from the vagueness surrounding what objects, physical or
otherwise, can be the subject of property rights.6
3 B.S. Blumberg, I. Millman & W.T. London, “Ted Slavin’s Blood and the Development
of HBV Vaccine” (1985) 312(3) N Engl J Med 189
4
Gina Kolata, “Who Owns Your Genes” New York Times 15 May 2000; Mr Fuchs had
had unprotected sex over the years with men who carried the HIV virus. It stood to
reason that he would be infected. But, the test showed no evidence of the virus. Over
the next six years, Mr Fuchs repeatedly contacted AIDS researchers and asked them to
f‌igure out why he seemed to be immune. But, he said, the scientists told him they were
not interested. Finally, in 1994, the Aaron Diamond AIDS Research Center in New
York agreed to study him. After months of research, the scientists at Aaron Diamond
discovered why Mr Fuchs and another man with a similar experience were immune.
The men had inherited a gene that results in a blocked porthole into white blood cells,
preventing the virus from slipping through. The investigators isolated the gene and
discovered how it worked and how many other people had the condition.
5
Deirdre Madden, Report of Dr Deirdre Madden on Post Mortem Practice and Procedures
(Dublin: 21 December 2005); Celia Hall Nigel Bunyan and Sean O’Neill, “Scandal of
the Organ Hoards” The Telegraph, 31 January 2001.
6
Jesse Wall, The Legal Status of Body Parts: A Framework (2011) 31(4) Oxford Journal
of Legal Studies, 783, p.784; “Unfortunately, the debate thus far has suffered from a
lack of clarity as to the criteria on which to make an assessment regarding the legal
status of separated biological material.”
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102
RO BE RT VAR D
The diff‌iculty of def‌ining property in the body
In legal terms, property is an abstract, conceptualised not as an actual physical
object but rather as a “bundle” of legal rights with a list of acknowledged
incidents of ownership.7 It is the coalescing of these necessary ingredients
that govern the legal relations between people with respect to the object in
question. Therefore they can include, inter alia, the right to possess one’s
property, the right to use it, the right to exclude others, the right to transfer
ownership by gift or by sale, the right to dispose of one’s property after death,
and the right not to have one’s property expropriated by the government
without payment of compensation.
8
Given this state of affairs, coupled with
the fact that where not prescribed by statute law, property rights are largely
the creation of judicial reasoning, it should come as no surprise that “property”
has multiple def‌initions.9
With respect to biological material, there is a long tradition of treating the
rights that one has to one’s bodily parts as inalienable, particularly if such
an exchange involves f‌inancial remuneration. This principle stemmed from
a desire to protect people against loss of organs in much the same way as
they are protected from slavery. This was reiterated by Lord Bingham in R
v Bentham, when he stated: “One cannot possess something which is not
separate and distinct from oneself. An unsevered hand or f‌inger is part of
oneself”.10 From this conception it is clear the subject of property rights must
be distanced from a human subject, but this does little to clarify the status
of separated biological materials. A report by the Nuff‌ield Council on Bioethics
declares that property does not exist in the human body, yet do the notions
of gift and abandonment which Nuff‌ield uses to justify altruistic donation
7 A.M. Honoré, “Ownership” in A.G. Guest (ed.), Oxford Essays in Jurisprudence
(London 1961) 107, p.112; Patricia Roche, “The Property/Privacy Conundrum over
Human Tissue” (2010) 22 HEC Forum 197, p.199; Robin Feldman, “Whose Body is
it Anyway? Human Cells and the Strange Effects of Property and Intellectual Property
Law” (2010–2011) 63 Stan. L Rev 1377, p.1382; “modern property law scholars think
of property as a bundle of rights with four key attributes: use, possession, exclusion,
and disposition.”
8
Radhika Rao, “Property, Privacy and the Human Body” (2000) 80 BUL Rev 359,
p.369; A.M. Honoré, “Ownership” in A.G. Guest (ed.), Oxford Essays in Jurisprudence
(London, 1961) 107
9 United States v General Motors Corporation (1945) 323 U.S. 373; It was stated that
property denotes “the group of rights inhering in the citizen’s relation to the physical
thing, as the right to possess, use and dispose of it; Yannee v Eaton [2000] AILR 5;
“The word ‘property’ is often used to refer to something that belongs to another. But
in the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a
description of a legal relationship with a thing. It refers to a degree of power that is
recognised in law as power permissibly exercised over the thing. The concept of ‘property’
may be elusive. Usually it is treated as a bundle of rights”. But even this may have its
limits as an analytical tool or accurate description, and it may be, as Professor Gray
has said that “the ultimate fact about property is that it does not really exist: it is mere
illusion.”
10 R v Bentham, [2005] UKHL 18
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