Ownership of Human Tissues - Essay Example

Ownership of Human Tissues The issues of ownership of property of any kind have been really controversial over the years. There are numerous instances of every person’s life when he or she can practice what can be called possession, control or domain. However one conceptualizes possession, it is clear that individuals can hold such rights in numerous things, extending from more solid things, for example, cars, adornments, or a plot of area, to more theoretical ideas, for example, our work, our works, our advancements, and even our business picture. For instance, a piece of land is by any law possessed by a person who holds all the documents regarding the land and whose names appear on the registers of land ownership. Similar cases are true for most other possessions. Whatever else a person may possess in this world, notwithstanding, no doubt naturally evident that he or she claims the cells of his or her body. Where else could the idea of possession start, other than with the parts of a substantial corpus that all would perceive as "me"? However, there have been claims and even court cases regarding the issue of ownership of human body tissues. For instance, if part of the patient body is removed and used for research or any other purpose, does the patient still retains the rights to these body parts. If not, how far do his rights of possession extend as concerns his own body parts? This essay will explore the historical and contemporary concept of ownership of human tissues and ethics. The guiding thesis for this essay is that the rights of ownership of human tissues extends to as far as the tissues are within the body1. The essay will explore the law concerning this issue and provide arguments for and against the thesis statement. The concept of property has been legally unclear over many years. The issue gets even more complicated when it comes to the basic question whether people actually own their own bodies. With any legally accepted property, the alleged owner has the right to use the property in any way they please only if the use does not harm others. If so is true, then donated human parts, and organs are still in the possessions of the donor and he, or she has the rights to dictate how they are to be used and/or disposed. However, this is not as simple as it sounds. With the advent of biotechnology, the world has witnessed multiple controversies related to the ownership and use of bits and pieces from human bodies whether alive or not. Human tissues and cells are currently scattered over a wide range of laboratories, sperm banks, museums, histology laboratories, fertility clinics and forensic centers to name a few. In these cases, to whom do these tissues and cells belong? Do the original owners or donors still have the rights, under the property law to ownership and use of their body cells? The property and intellectual property law has not been convincingly clear on the issue of ownership of human body tissues2. The law, in any case, does not see the issue so neatly and plainly. Through the drifting pathways of property and licensed innovation (intellectual property) law, we are quick approaching the time when pretty much anybody can have property rights in your cells, with the exception of you. In expansion, with some change, anybody can have licensed innovation rights in developments identified with the data contained in that, yet you dont. This provision of the law is however exclusively applicable to cells that are out of the donors body. When the cells or tissues are intact in the owner’s body, there is no controversy on the issue of ownership and use. However, when they are no longer intact, the legal picture appears to undergo a shift that results to a tableau that greatly affects the choices and decisions one might make. The mind picture that this provision of the law paints may appear rather far-fetched. However, the law has been applied as such in more than one occasion. Over the years, specialists and medical research foundations have assumed that they hold the right to "gather, study, store, exchange, or discard tissue and human cells samples and related patient information, for example, protected quality lines or method for hereditary testing. Despite the fact that the Code of Medical Ethics of the American Medical Association disallows the utilization of human tissue and its items for business purposes without the informed assent of the benefactor, doctors and scientists have accepted that they can utilize patient tissues and other substantial substances to create cell lines, hereditary arrangements, and other biologic items that may be fiscally remunerating. A few court cases have tested specialists suppositions. If we can consider a simple group of cells, extracted from the body of a human being in the form of a blood sample, the researcher or the laboratory has all the rights over the sample. These rights extend to the right to exchange these samples, as property in the manner that the new owner may find appropriate. In 1950s, a cancer patient Henrietta Lacks died of a rather virulent form of cervical cancer. Researchers and medical specialists decided to make a study using her body cells3. The study and research that followed culminated to the development of a method for reproducing human cells in-vitro. This was the origin of the so-called ‘HeLa’ cell line which is the mother of biotechnology and virology4. The development has helped many people, including being the idea behind the production of polio vaccine, cancer treatment drugs and in-vitro fertilization. It is surprising that the patient died without knowing the contribution she was doing to the modern medicine. Critics have claimed that the economic benefit obtained from these developments was supposed to be shared with the family left behind by the donor of the cell line. However, the law recognizes that the rights to the ownership of the tissues extracted from Henrietta was perceived null the moment they were detached from her body. This means that from that moment on, the cells were the property of the research institution. This was the beginning of claims concerning the ownership of human cells and tissues. Although there was no real lawsuit in the case, the basic of the situation has been used in many cases hereafter. The Moore v. Regents of the University of California represents a real case concerning the ownership rights of human tissues5. John Moore was being treated with for leukemia at UCLA teaching hospital. In the process of his treatment, and also catch up look after seven years, specialists at UCLA extracted his spleen and took samples of tissue and blood. The specialists told Mr. Moore that the methods were fundamental for the treatment of his life-debilitating disease. However, they did not let him know that his cells were uncommon and offered incredible potential for exploratory research. Using the cells from Mr. Moore’s spleen, scientists at UCLA secured the "Mo" cell line. When the case came to trial, UCLA had gotten several thousands of dollars in incomes from the cell line, and economic specialists evaluated that the potential estimation of the line could achieve billions of dollars6. Moore sued the hospital and his doctors citing his right of ownership of the body tissues extracted from him. He wanted to be compensated for the use and the economic benefit resulting from the use of his body tissues7. His claim was based on the perception that the body tissues belonged to him, and he, therefore, had property rights over them. However, the court rejected the claims based on the logics that once the cells were removed from his body, their disposition is limited in that a) the person who acquires the ownership cannot sell them under certain circumstances; and b) the disposal of the cells after the intended use is according to the health department guidelines. This was different from the expected. The assumption that the human body tissues remain the property of the donor despite having been removed from the body would provide an array of special rights. First, the donor would, in this case, be sought to assent to any intended use of the tissues. Secondly, the donor would have the right to dispose of the tissues as wished. Since these two important dispositional rights were missing in the case, there was no property rights involved. The case was concluded that Mr. Moore had no rights over his own body tissues8. The decision was based on the position of the law, in this issue, that if a person’s tissues are extracted from his or her body with consent, and used for scientific and commercial purposes, the patient does not retain any ownership of the tissues and so cannot direct how they are then used. In Moore’s case, he consented for the removal of the spleen. However, the doctors withheld the information concerning the intended use of his body tissues and the special interest they had on the particular spleen. This meant that the only settlement that Moore could secure was related to the breach of fiduciary duty owed to the patient by a doctor in the case of informed consent. This settlement would not be as high as expected because of two main reasons. First, the economic importance of the tissues was not inherently on the tissues but on the researchers work. Secondly, the patient could not have done anything similar with the tissues if left to have rights over them. From general reasoning, the individual from whom the tissues and cells have been gotten must have a few rights in connection to those cells, and such rights cant be totally clarified through the trustee obligation of the doctor9. Mr. Moore could have contracted with scientists himself to investigate and endeavor the data contained in his cells, regardless of whether those scientists were his doctors. From a more realistic point of view, assume a man separates his finger while sawing wood in his patio. One would anticipate that individual to have the right to ask that the finger be re-connected, rather than some other potential uses or modes of disposition, including utilization for examination10. However, the rights to body tissues and cells do not fall under the provision, not as basically as it is here. The man in question would make a claim of the finger not because it contains any information that is not to be disclosed but simply because it is his. It is a logical claim to say that we have property rights on our body parts only to the extent that they are intact or if detached have the potential to be reattached or reused. However, a basic understanding of the property law tells us that any kind of property has an owner with the ownership rights to its use, possession, exclusion and disposition. If this then is the case, when the human tissues are removed from a person, to whom do they belong if not the donor? The human body tissues and cells, whether intact or removed cannot just spring forth and become the property of a laboratory or an individual researcher without having a proper exchange of property rights. In my logical opinion, therefore, the rights to human tissues lie on the donor of those tissues until in a written change of rights11. If this does not happen the donor can dictate the use, possession, exclusion and even disposition of the tissues. It is however worth noting that the some property rights do not extend as expected. For instance, if a person buys a poisonous chemical intending to use it against a pest, the person may claim to have property rights over the chemical, which is true. However, the use, possession and disposition of the chemical is highly regulated. Similarly, the rights to ownership of a human tissue, though belong to the donor, are regulated. The use, for whatever reason must be following an agreement and a signed consent of the donor. I conclusion, therefore, as human cells and tissue samples become increasingly important in academia and health research, the controversy surrounding the rights to control of their use, change of ownership and disposition increases. Whereas it is agreeable that the samples obtained from a patient can be used to create common value, as is the case of the Mo-cell and HeLa cell lines, the position of the donor in the process has not been fully determined. Whether the donor has the power, under the law, to dictate the use of the tissues once removed remains debatable. Although it defies logic to claim that a lab can have intellectual property rights over human cells obtained from a patient yet the patient cannot, it is clear that the value of these cells as tangible property to life is great. This means that treating the cells and tissues as property and hence requiring that the donor signs a contract to have the ownership transferred will endanger this value. This is because such an attempt will encourage commercialization of human tissues thereby significantly eroding the reverence that the law has on human life and its dignity12. The attached value of the tissues would risk having people coerced by their financial situations to sell their possibly valuable body parts. To discourage such erosion of dignity and respect for life, it would only be appropriate to have the ownership rights of human tissue extending only to the extent that the tissues and cells ate intact in the human body. Beyond that point, the donor has no rights over the property. References Andrews L. Who owns your body? A patients perspective on Washington University v. Catalona. J Law Med Ethics 2006; 34:398-414 BRUCE ALBERTS, ET AL., MOLECULAR BIOLOGY OF THE CELL 474 (4th ed. 2002). Dwight Garner, A Woman’s Undying Gift to Science, NEW YORK TIMES C1 p. 10 (Feb. 3, 2010) Moore v. Regents of Univ. of California, 51 Cal. 3d120, 136-137 (1990) National Bioethics Advisory Commission. Research involving human biological materials: ethical issues and policy guidance. Washington, DC: Government Printing Office, 1999. Nelkin, D., Science as Intellectual Property (New York: MacMillan, 1984) New Developments in Biotechnology: Ownership of Human Tissues and Cells March 1987 Schmerber v. California, 384 U.S. 757, 767-768 (U.S. 1966) Read More