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An alternative to property rights in human tissue.

An Alternative To Property Rights in Human Tissue

Recent developments in biotechnology involving human tissue are sweeping our interactions with this material well beyond the boundaries of existing law. Some of these developments allow profit-oriented companies to use human tissue to generate lucrative products such as drugs, diagnostic tests, and human proteins. The profits obtained elevate the monetary worth of certain types of human tissue, which until very recently has had little or no monetary value, to incalculable levels. [1] Such changes require a society to reasses the present and future status of human tissue within the legal system.

As a free market society, we believe in the general principle of economic justice and attempt to render all individuals their economic due. Based on this general principle, some have argued for recognizing a limited form of property rights in human tissue, such that the profits can be shared amongst all who contribute to the development of the product, including the donor kof the tissue. [2] Still others have called for full recognition of property rights in humna tissue such that organs and other tissues can be sold as a source of revenue for the donor. [3]

This article investigates whether current ethical standards prohibiting a commercial kmarket in transplantable organs and tissues can be maintained in a legal structure within which human tissue can also be used as a source to generate enormous profit. It is generally considered that the only options available are to recognize or not recognize property rights in human tissue. [4] We propose instead a legal structure in which transplantable human tissue entails no property rights, but in which such rights can be created in new forms of tissue through the investment of labor. This structure will be applied to the facts of Moore v. The Regents of the University of California to illustrate how a claim based upon the recognition of property rights in human tissue would be decided. [5]

Property Rights and the Body

Modern legal systems have consistently held that no property rights attach to the human body. [6] This standard has been affirmed regardless of whether the humna body was alive or not. However, the courts have recognized that a temporary right of possession may exist in a dead body in favor of an executor until proper disposal of the body has occured. In Pierce v. Proprietors of Swan Point Cemetery, the Rhode Island Supreme Court held:

Although...the body is not property in the usually recognized sense of the word, yet we may consider is as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it, arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may from family or friendship have an ointerest in it...[7]

This supposed "right" is not only a very limited possessory right (for purposes of a proper burial, etc.), exercisable only by the executor of an estate, but is recognized for a limited time; the "right" is extinguished upon burial or cremation.

Courts have also consistently refused to recognize any form of property rights in a living huma body. This reflects society's moral abhorrence toward any form of slavery. When faced with a plaintiff seeking the recognition of property rights in his or her body, the courts have classified the action as a tort and analyzed the matter through this legal framework. [8] Specific legislation, such as Congress's National Organ Transplant Act, builds upon this policy by explicitly prohibiting the inter vivos sale of many human organs. [9]

Nevertheless, developments in biotechnology hold great promise for both the advancement of scientific knowledge and the improvement of human health, and this eventually requires the use of human tissue in research. Private industry will typically participate only in research from which it can generate profit to recoup its investment of time and money. However, to generate prodit, it must be able to claim property rights in its research products. Thus, when private industry develops a commercial product--regardless is such products were generated through direct or indirect utilization of human tissue -- it demands some form of proprietary protection (patents or trade secrets) for these products. Given society's ethical standard of forbidding the recognition of property rights in human tissue, the question is how these standards can be maintained while allowing private industry to secure property rights in their inventions that directly or indirectly involve human tissue.

We can identify three distinct levels to classify the substance that makes up the whole human being. The first level is that of the person and persona. [10] The second is that of a functional bodily unit, such as blood, an organ, or cell, which can be transplanted into another person and carry out its function in the same capacity it did in its originator. At a third level, something must be produced from the human material, such as a cell line or cloned genetic material for it to become useful. It is through the labor of cultivating the tissue that the laborer could claim property rights in the final product.

The Level of Person

According to Kantian philosophy, it is imperative that a legal system distinguish natural persons from things. The concept of free will differentiates human beings from mere objects, kand dictates that human beings receive nothing less than full human dignity. If free will is recognized as the basis of moral rights, then it is this free will that allows human to exercise control over objects.

The legal recognition of property rights in the pecuniary value of one's name, voice, appearance, and personal features may appear contrary to this basic philosophy. However, these "rights of publicity" are property rights that attach to the concept of a human entity and not directly to the human body itself. [11] Such rights disappear upon the death of the natural person though the corpse may continue to exist, as exemplified in Lugosi v. Universal Pictures where it was questioned whether the persona of a movie actor -- a proprietary right -- could be passed on to his heirs. The court held that there did exist a right in an actor's name and likeness but that this right did not survive the actor. [12]

In this first level, then, the legal structure should view the human body in its entirety, including the persona. This level represents the most complex sum of the parts (that is, organs, tissue, proteins, genetic material, etc.e and could not be attained by any one of the parts independently. Although each of the parts are very similar, if not identical, from person to person, the sum total collection of these parts creates a unique individual. As long as the parts remain within that person, they serve the function of that total and hence fall under the classifjication of property rights for that total, viz., the "rights of publicity." However, once a part is removed from the total in such a way that it no longer functionally serves its original possessor, it would fall within the second level of the legal structure.

Res Nullius

The second level is constituted by functional bodily units capable of being transplanted. Upon removal from a person, human bodily material would be statutorily or judicially deemed res nullius; it would become a corporeal moveable owned by no one. If tissue is removed for transplantation into another person, the tissue would lose its res nullius status once the transplant was complete. Additionally, by having extracted tissue pass through the res nullius categorization, a donor would be prohibited from legally reclaiming rights in his transplanted tissue at some later date.

Under the classical definition of res nullius, ownership would be acquired by the first person who took possession of the tissue. However, for the purpose of trnasplantation, the legal system could deem those in possession of the excised tissue -- physicians, nurses, or tissue transporters -- as being possessors "in trust" of the tissue until the transplant was complete. During this period, the tissue would be classified as trust res nullius; a things owned by nobody but held in trust for a recipient. [13]

A categorical distinction must be made regarding tissue that is permanently removed from the body as opposed to tissue that is temporarily removed with the intention of having it subsequently become part of the same person. A temporary removal may come about by an unintentional event such as the accidental amputation of a limb or by an intentional act such as the storage of blood for use in future surgery. In these situations, the patient would be both the donor and the recipient; the person in possession during the interim would be the trustee.

Some companies, such as those that concentrate bone marrow or blood factors, may be concerned that their products would fall under the second level of classification, prohibiting them from being able to protect their products for lack of property rights. These products are types of human tissue that have been temporarily removed with the intention of transplantation into another body. Furthermore, such products are composed of tissue maintained in its original form. However, these products could be protected through other means, such as the doctrine of unjust enrichments arising for a service performed.

The benefit of declaring a functional unit of bodily material res nullius is that this material will continue to serve humankind (for example, organ transplant and blood transfusion) under a traditional altruistic spirit without becoming a marketable commokdity, as could occur if property rights were to be recognized in it. Furthermore, isolating human transplantable tissue within its own classification would serve to protect its status in the future where the unknowns of technological development might threaten its status. Tissue that is permanently removed from a body, however, would fall under a third level of classification.

Res Communes Omnium

A third level would deem permanently removed human tissue as res communes omnium: things that by natural law are the common property of all humans. [14] This classification would allow human material to be used in conjunction with high technology to generate property rights in the product. However, only after something is produced from tissue deemed res communes omnium could property rights be created in that thing. A key distinction between matter deemed res communes omnium and res nullius is that the latter need not be transformed in any way to be useful to humankind: it functions in much its original form.

This view of property reflects the philosophical justification of property expounded by John Locke's labor theory. Locke's justification rested upon two basic assumptions: A person has the right to maintain his life; and, God has provided us with the means to carry out this maintenance. The entire world is a common resource given by God to all persons to maintain themselves. These resources are the raw materials from which useful things are made through a person's labor. Since the labor is part of the person himself, as soon as the person mixes his labor with these raw materials to create a new product, he creates something that belongs only to him and nobody else. Locke stated that:

It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unqeustionable property of the labourer, no man but he can have a right to what that is once joined to...[15]

Thus the creation of a new thing through merging that thing with one's labor results in property that that person alone has the right to own; this is the case regardless if the labor is perfomed directly by the person, a servant under that person's control, or an animal (or machine) under that person's ownership.

How would this Lockean justification for the creation of property rights through labor apply to tissue permanently removed from the human body? Perhaps the following analogy will help us answer this question.

No one can claim exclusive property rights in information that is found in a common state, as this information is free for all to discover and utilize. This concept is expounded in the U.S. Supreme Court's decision of International News Service v. The Associated Press:

The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions and ideas -- become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property. [16]

Such information can be used to create property through the cultivation of this information into a report. This occurs every day within the business of news reporting. News can be recognized as having a dual character: the substance and the actual report. The substance of the information contained in the production is not the creation of the reporter, rather, as the court states, if it is a thing of "common property, so that none can make use of it, it is said to be publici juris, as in the case of light, air and public water." [17] However, property rights are created when a person transforms this common information into a report; the particular collocation of words in which the reporter has communicated the information is where property rights are created by virtue of the Copyright Act. [18]

Many parallels can be drawn between the information contained within a news resport, and the utility contained within human matter, such as a cell line or particular sequence of genetic material. First, res communes omnium has been defined as "things incapable of appropriation, such as light or air." [19] The judicial pronouncement that the substance of a news report is publici juris parallels the proposal that permanently excised human substance be deemed res communes omnium, as both these substances belong to a common state.

Secondly, scientists could justify a claim for ownership in a cell line, and products generated therefrom, much in the same way that a news gathering agency claims rights in the news that it has collected and collocated. AS stated in International News Service:

Not only do the acquisition and transmission of news require elaborate organization and a large expenditure of money, skill, and effort; not only has it an exchange value to the gatherer, dependent chiefly upon its novelty and freshness, the regularity of the service, its reputed reliability and thoroughness, and its adaptability to the public needs; but also, as is evident, the news has an exchange value to one who can misappropriate it. [20]

Thus, the transformation of this information into a news report or the transformation of a cell's genetic material into a viable product (for example, via cloning) would, through labor, produce a new thing capable of being owned. The newspaper article is property under the Copyright Act, whereas the new genetic material would enjoy property rights under the Patent Act or trade secret law.

Additional support for res communes omnium can be found in case law. In Funk Brothers Seed Co. v. KAlo Inoculant Co., the court held that unmodified cells found in nature are free for all to use:

...these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. [21]

Furthermore, a series of cases, commonly referred to as the Sears-Compco doctrine, state that if a thing cannot be the subject of a patent in its current form, then such a thing is free to use by all (that is, is within "the common state of Nature"). [22] It follows then, as unmodified human tissue cannot be patented, once it has been permanently removed from the body it is free for anyone to use; this use, however, is always subject to our legal, moral, and ethical standards.

Thus, case law exists that supports the proposal to classify human tissue permanently removed from the body as res communes omnium. In addition, Locke's theory for the creation of property through labor supports the concept of allowing human material to be used in conjunction with skill and effort to create property rights in the product.

DNA in the Legal Structure

The advent of a DNA fingerprint technology has allowed for the exact identification of an individual from a very small sample of tissue. [23] Given that a DNA fingerprint is unique for a particular person, how can the three-tiered structure claim that the information contained in an individual's genetic code is common to all humankind and thus res communes omnium? This apparent paradox is resolved by acknowledging that a major distinction exists between the uniqueness created by the organization of the total genetic material versus the nonuniqueness of components of the genetic material. A DNA fingerprint is an expression of a particular pattern of genetic material; nonetheless, each gene is common to humankind. In other words, though the parts are all the same, the way in which they are collected together makes the sum total unique.

The actual original strand of genetic material obtained from a donor is also problematic. Who owns this material? The third level dictates that substances contained within human tissue permanently removed from the body be deemed res communes omnium and are thus themselves incapable of becoming property. The original strand of genetic material would act as the initial template from which the laborer's property would be generated. Newly formed strands of genetic material would, in turn, act as the template for successive generations of hte product. Thus, the laborer would own everything produced except the original genetic material, which would continue to belong to nobody. If a human gene is cloned into a million copies of that gene, the laborer would own only the million copies but not the original gene. The same scenario would apply to human cell cultures. The original cell that initiated the culture could never be owned, though all copies of the cell would be owned by the laborer.

The Moore Case

How might this structure be applied to the facts of Moore, a case involving noncoknsensual use of the plaintiff's cancerous spleen cells to develop lucrative pharmaceutical products? The crux of this dispute concerned whether the plaintiff held personal property rights in the tissue and substances of his body and, if so, whether these rights were breached when the defendant converted this tissue for commercial profit.

The first level of the structure is not applicable to the facts of Moore. A persona attaches to the whole person; these proprietary rights would not apply to a mere part of a person such as a cell or a strand of DNA. The second level pertains to tissue destined for transplantation and is also not applicable to the facts of the Moore case.

As Moore's spleen and blood were removed with the intention of being permanently removed, this tissue would be classified as res communes omnium. This classification would not recognize the existence of property rights in human tissue, yet it would allow laborers to generate property rights through work -- justified by a Lockean analysis. This would deny Moore any form of remuneration based upon property rights in his tissue. However, it would not deny the plaintiff the right to seek recourse through causes of actions independent of the need to have property rights in the human body.

Legally classifying the substances that make up humans into three distinct levels as we have suggested would thus allow us to preserve society's present ethical standards with regard to the transplantation of human tissue as an altruistic donation while at the same time allowing laborers to secure property rights in their inventions. Such a classification would, moreover, allow the legal system expressly to address our intuitive sense that while we each partake of universals of physiology, as unique personae we are more than the mere aggregation of our interchangeable parts.


[1] Thomas P. Dillon, "Source Compensation for Tissue and Cells Used in Biotechnical Research: Why a Source Shouldn't Share in the Profits," Notre Dame Law Review 64 (1989), 628-45, at 630.

[2] Roy Hardiman, "Towards the Rights of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue," UCLA LAw Review 34 (1986), 207-64; Mary T. Danforth, "Cells, Sales, and Royalties: The Patient's Right to a Portion of the Profits," Yale Law and Policy Review 6 (1988), 179-202.

[3] Lori B. Andrews, "My Body, My Property," Hastings Center Report 16:5 (1986), 28-38; Ellen F. Paul, "Natural Rights and Property Rights," Harvard Journal of Law and Public Policy 13 (1990), 10-16.

[4] For discussion addressing why property rights should not be recognized in human tissue, see Allen B. Wagner, "Human Tissue Research : Who Owns the Results," Journal of the Patent and Trademark Office Society 69 (1987), 329-52; and Dillon, "Source Compensation for Tissue and Cells."

[5] 249 Cal. Rptr. 494 (1988) (Cal.C.A.); File "S006987" (July 9, 1990) (Cal. Sup. Ct.).

[6] In fact, the Supreme Court of California verified this position in its recent ruling in Moore. However, some jurisdictions have created statutory exception for such regenerative tissue as hair, blood, and semen. The monetary consideration involved in such transactions, however, can be explained as service charges; see the Uniform Commercial Code, the American Law Institute and National Conference of Commissioners on Uniform State Laws (Official Text -- 1978).

[7] 14. Am. Rep. 667 at 681 (R.I.Sup. Ct 1872).

[8] Morky v. University of Texas Health Center at Dallas 529 S.W. 2d 802 (1975) (Texas Ct. of Civ. App.); Browning v. Norton Children's Hospital 504 S.W. 2d 713 (1974) (Ky. C.A.).

[9] National Organ Transplant Act, Public Law 98-507; Additionally a state's version of the Uniform Anatomical Gift Act or thu Uniform Commercial Code usually classify the paid transfer of nonvital regenerative tissue as a service rather than a sale.

[10] This right is a recognized and accepted form of incorporeal property; see Brown Chemical Co. v. Meyer 139 U.S. 540 (1891).

[11] Price v. Hal Roach Studies Inc. 400 F.Supp. 836 (1975) (S.D.N.Y.).

[12] Lugosi v. Universal Pictures 603 P.2d 425 (1979) (Cal.Sup.Ct.) However, in 1984, the California legislature enacted $S.990 California Civil Code which permitted limited rights in the personality to be passed to the heirs of the deceased (50 years post-death); furthermore, some other states have held the right of publicity to be descendible; see Estate of Presley v. Russen 513 F.Supp. 1339 (1981).

[13] A subclassification of res nullius may better serve this function such as hereditas iacens -- a thing belonging to nobody but part of a deceased's estate prior to its acquisition by an heir, or perhasp res divini iuris -- things under divine law, thus making them non-negotiable and excluded from any legal transactions; Adolf Berger, ed., Transcations of the American Philosophical Society: Encyclopedic Dictionary of Roman Law 43:2 (Philadelphia: The American Philosophical Society, 1953), 489, 677.

[14] Berger, Transactions, at 677.

[15] John Locke, The Second Treatise of Civil Government: A Letter Concerning Toleration, ed. J.W. Gough (Oxford: Basil Blackwell, 1946), 15.

[16] International News Service v. The Associated Press 248 U.S. 215 (1918), at 235.

[17] International News Service, 221.

[18] International News Service, 239.

[19] J. Burke, Jowitt's Dictionary of English Law, 2nd ed. (London: Sweet & Maxwell Ltd., 1977), at 1556.

[20] International News Service, at 221.

[21] 333 U.S. 127 (1948), at 130.

[22] Sears, Roebuck & Co. v. Stiffel Co. 376 U.S. 225 (1964); Compco Corp. v. Day-Brite Lighting Inc. 376 U.S. 234 (1964); Also William D. Noonan, "Ownership of Biological Tissue," Journal ot the Patent and Trademark Office Society 72 (1990), 109-113.

[23] Andrew G. Uitterlinden et al., "Two-dimensional DNA Fingerprinting of Human Individuals" Proceedings of the National Academy of Science 86 (1989), 2742-46; Paivi Helminen et al., "Application of DNA 'Fingerprints' to Paternity Determinations" The Lancet, 21 March 1988, 574-76.

Margaret S. Swain is completing her PhD in neuroscience at the University of Montreal and is currently enrolled in McGill University's Faculty of Law, Montreal, Canada; Randy W. Marusyk is a student-at-law with Macera & Jarzyna, Ottawa, Canada.
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Author:Swain, Margaret S.; Marusyk, Randy W.
Publication:The Hastings Center Report
Date:Sep 1, 1990
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