Whose Body Is It Anyway? Human Cells and the Strange Effects of Property and Intellectual Property Law

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There are many aspects of our lives over which we can exercise what can be called ownership, control, or dominion. However one conceptualizes ownership, it is clear that people can hold such rights in many things, ranging from more concrete items, such as automobiles, jewelry, or a plot of land, to more abstract concepts, such as our labor, our writings, our innovations, and even our commercial image.

Whatever else I might own in this world, however, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin other than with the components of the tangible corpus that all would recognize as "me"?

The law, however, does not view the issue so neatly or clearly. Through the rambling pathways of property and intellectual property law, we are fast approaching the point at which just about anyone can have property rights in your cells, except you. In addition, with some alteration, anyone can have intellectual property rights in innovations related to the information contained therein, but you do not.

I should be clear at the outset that I am talking about property and intellectual property rights to cells when they are no longer in your body. The sanctity of control over one's body remains reasonably intact, as long as the cells are attached to you. (1) When cells are no longer attached, however, the legal landscape shifts, and the resulting tableau has a strong effect on the choices one can make with those cells that do remain in the body.

As so often happens in law, we have reached this point not by design but by the piecemeal development of disparate notions. Various doctrinal strands have emerged in isolation of each other, each appearing to solve a particular problem in its own domain. When gathered together, however, the doctrines form a strange and disconcerting picture.

Consider a human cell, or a group of cells, being used for research purposes. It could be a blood sample or perhaps a piece of tissue left over from a biopsy. When a researcher is working with a sample of human blood or tissue, the researcher, or the lab, has a property right in those cells. Similarly, if the researcher isolates a protein or a segment of DNA from that sample, the researcher or the lab has property rights in the tangible isolated elements.

Others may ask for a sample of the tissue or the cell lines developed from that tissue. (2) These items are treated under contract law according to agreements related to the transfer of tangible property, commonly called "material transfer agreements."

In addition to property rights, a researcher who isolates something from the sample also may be able to apply for patent rights on that isolated product. If the researcher successfully manipulates the cell, forming a novel cell line or producing a new protein, the researcher may receive a patent on the protein or cell line as a new product. (3) In addition, information from the coding sequences in those cells may help form the basis of a diagnostic or therapeutic patent. In short, a researcher with a human tissue sample may have property rights in that sample. Through observation, isolation, and manipulation of the sample, the researcher may also obtain intellectual property rights.

How about the human who contributed the sample in the first place? The California Supreme Court has refused to grant property rights to individuals in the cells of their bodies when those cells are no longer in their bodies. (4) A federal district court reached a similar result. (5) The discussion in the cases suggests distaste for the possibility of treating human body parts as a form of property, as well as serious concerns about interfering with advancements in medical science. (6) As a result, the person whose body provided the sample has no property rights, although we seem to have no problem giving others property rights in those cells. …