An Alternative to Property Rights in Human Tissue

By Swain, Margaret S.; Marusyk, Randy W. | The Hastings Center Report, September-October 1990 | Go to article overview

An Alternative to Property Rights in Human Tissue


Swain, Margaret S., Marusyk, Randy W., The Hastings Center Report


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. …

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