The question of property rights in human tissue has traditionally been relevant in matters concerning dead bodies. However, with the rise of Biotechnology human tissue storage is increasing rapidly and so are questions about ownership. Moore v. Regents of the University of California is one of the most influential American cases. The court considered whether the plaintiff had ‘stated a cause of action against his physician and other[s] … for using his cells in potentially lucrative medical research without his permission’.
The majority ruled that a physician must ‘obtain [a] patient’s informed consent’ and disclose unrelated research and economic interests which could ‘affect … medical judgment’. However, they identified ‘several reasons to doubt’ the plaintiff had maintained a property interest in his excised cells to support an action of conversion. They also ruled that the facts did not warrant extension of the tort. Their main reasons were matters of policy, a preference for a legislative solution, and the existence other protective avenues.
The judgment has been criticized for being inflexible, incorrectly assuming an extension of conversion was required, and allowing policy to inhibit reasoning. The dissenting opinion of Mosk J delivers a clearer understanding of the elusive parameters of property. It outlines a conceptually broad definition of property and commends it as a system for ‘resolving disputes between parties with different interests in an object’.
It also demonstrates the capacity of the parameters of property law to evolve with technological change, incrementally adapt to the expectations of society, and provide equitable outcomes. Subsequent developments, and analysis of the criticisms of the judgment, reveals a proactive reasoning that although in minority at the time, appears to have been prophetic in nature. PROPERTY DEFINITION Mosk J illustrated the depth of property law by explaining it is not defined by fixed rules, but is actually a ‘”bundle of rights and privileges”’, as accepted by most property scholars.
The majority claimed that state health and safety legislation had ‘eliminate[d] so many of the rights ordinarily attached to property that’ any remaining rights Moore had in his excised cells could not be ‘”property” or “ownership” for purposes of conversion’. Mosk J contended ‘the same bundle of rights does not attach to all forms of property. ’ He then identified factual situations showing the persistence of ‘protectible property interests’ despite legal limits or prohibitions.
Following this analysis he then ruled that even if certain rights had been removed by Statute or other law, Moore had specifically retained the right to do the same as the defendants and make commercial arrangements ‘to develop and exploit the vast commercial potential of his tissue’. An example of this occurred in 2001 with PXE International negotiating property rights with researchers on behalf of group members suffering from Pseudoxanthoma Elasticum. ADAPTABILITY The majority’s first reason to doubt ownership was they could find ‘no reported judicial decision [that] support[ed] Moore’s claim, either directly or by close analogy.
’ Mosk J refuted this point by maintaining there had been no ‘reported decision rejecting such a claim. ’ He then described conversion, and by association property, as a ‘creature of the common law’ with an intrinsic capability to evolve. He referred to Sindell v. Abbott Laboratories as an example of the common law responding to ‘contemporary…advances in science’, and ruled that conversion and property law should similarly respond if warranted by the facts.
This willingness to focus on the consequences of the case as opposed to rigid ‘conceptual foundations’ displays an appreciation that inflexible granting of property rights ‘can bear savagely on those who do not own or control. ’ The capacity to accommodate ‘divergence in the treatment of different types of property’ has since been identified as particularly suited to the issue of cell ownership. LEGISLATIVE GUIDANCE In the absence of precedent, the majority took guidance from existing legislative control of trade and disposal of ‘human biological materials’ and, as explained above, concluded it limited ‘patient control over excised cells.
’ They also contended that the difficult policy choices involved in the case meant a legislative solution was preferable over an extension of the law of conversion. They also implied the legislature would apply a ’ban on monetary compensation for the use of human tissue in biotechnological research and development. ’ Disagreeing with this stance, Mosk J demonstrated that property rights in excised cells were not a new phenomenon. He referred to contemporary comment by Jaffe showing the legislation permitted non-therapeutic sales, and Danforth who commented that regenerative tissue could already ‘be sold under the current legal system.
’ Highlighting that such sales were commonplace with the Science field, he demonstrated that property law is often intertwined with other areas of law in ways that even judges will interpret inconsistently. ETHICS AND EQUITY The majority’s main policy concern for declining to extend the law of conversion was the fear that granting property rights would create a risk of ‘disabling civil liability’. They feared it could ‘destroy the economic incentive to conduct … research’, and also compromise the ‘relatively free and efficient’ exchange of cell lines and cultures.
Mosk J countered this argument by placing greater emphasis on two ‘policies that … recognis[ed] that every individual has a legally protectible property interest in his own body and its products’. He also demonstrated that fiduciary duty and informed consent would not result in just outcomes as they would only provide the ability to decline treatment, and did not protect the patient from exploitation. The first policy was society’s ‘profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona.
’ Mosk J reasoned that the shadow of past exploitation, such as ‘slavery’ and ‘indentured servitude’, darkens claims regarding rights ‘to freely mine or harvest valuable physical properties of the patient’s body’ without patient compensation. The second concerned equity and society’s expectation of ‘fundamental fairness … between its members’, and its disapproval of ‘unjust enrichment’. In Moore the unique contribution of the cells was not in dispute and Mosk J likened Moore to a crucial contributor to the patent.
He reasoned that equitable sharing could be achieved in a manner that provided proportional compensation based on the contributions of both researchers and patients. In expanding his stance on ethics policy he cited Danforth, who discussed rights to control body part disposition as being built upon human dignity. She also asserted ‘research that results in [a] significant’ windfall for the researcher but fails to compensate the patient abrogates society’s regard for the ‘dignity and sanctity’ of the human ‘body … mind and soul’.
To support his equity policy, the Judge referred to Hardiman, who promoted property interests in excised cells to allow for proportional compensation and prevent patient exploitation. He also adopted the Court of Appeal’s analysis in holding that if Biotechnology has become a ‘science for profit’ then equity can find no “‘justification for excluding the patient from participation in those profits. “’ This reasoning pointed out the equitable and ethical shortcomings of ignoring the patient as a crucial contributor.
In the process, it also identified property law as ‘both a legal and social’ mechanism capable of achieving fairness and equity. Since Moore it has been ’submitted that property, human dignity and autonomy are not contradictory concepts’. Many ethicists believe ‘we [should] have exclusive ownership’ of our body and it parts. On a simpler yet related level, Gitter discusses the concept of cells being equally important as ‘chemical reagents and other equipment used in scientific research. ’ Surely it is inequitable for suppliers of these products to be compensated while patients receive nothing.
WEAKNESSES OR STRENGTHS? The next section of this article discusses criticisms of the judgment. Responses are provided, and although some are based on individual perceptions, it is submitted that these responses actually highlight the judgment’s strength, and the suitability of property principles to facts of the case. It is important to note that Moore involved some very real deception based on the unique qualities of Moore’s cells, and Mosk J was concerned with achieving ‘an appropriate remedy’.
The willingness to recognise property rights in excised cells has been criticised for being too dismissive of ‘the conflicting moral, philosophical and even religious values at stake’. It has also been suggested he confused the role of a superior court to adapt the common law in the interests of justice, with its responsibility to curtail property rights for the best interests of society. Granting property rights could have disturbed the ‘collectively defined moral baselines of the property concept’ by placing a market value on our bodies and ‘undermin[ing] … altruism’.
Concerns have also been raised that commodification of the body could exploit the poor and more disturbingly, lead to people altering their body through the use of drugs or abstaining from treatment to increase their value. However, such criticism has been described as ‘paternalistic’ and ignorant of the many different reasons that people may have for altruistic donation. Thus highlighting a possible discord between ‘judicial [and some academic] perceptions of what is in the public interest and what the community is prepared to tolerate. ’
Failure to consider the true economic effects on the biotechnology industry and medical research was criticized by the majority. Mosk J stated that stringent record keeping already existed, including the patient’s parameters of use. However, with estimates of United States tissue samples at 307 million by 1999, the complexity and cost of creating and maintaining such complex records had the potential to ‘add significant burdens to … developing biotechnical products’. Expecting researchers to incur these costs, as well as share profits may have strongly discouraged further research.
In response, it has been held that society’s enthusiasm to support important biotechnological breakthroughs has granted too many rights, and the imposition of some extra cost may an appropriate adjustment. A further criticism is the concept that granting property rights inappropriately rewards the patient who has not ‘contribut[ed] intellectually or physically’ to the finished product. All they have done is donate their tissue, which is often unwanted and has no ‘inherent commercial value’. However, it has been pointed out that there are many circumstances where people are compensated without ‘earning’ payment.
Examples of this include exploitation of a person’s own beauty, or material deposits of bodily fluids for non-research purposes. It is also noted that there are risks involved in being a research participant. These include the possibility of harm from medical procedures, loss of dignity, exploitation, and psychological trauma. Criticism has also been raised regarding the lack of a ‘principled basis for determining’ division of profits ‘between the potential claimants. ’ In the majority of cases, cells utilised in biotechnology do not possess unique qualities and often many different samples are used to create a product.
Determining adequate compensation would be difficult, but surely not beyond some type of legislative profit sharing scheme, or reductions in medical costs. The criticism also fails to consider the plaintiff’s claim regarded the ‘unauthorized use of his bodily tissues before [the] defendants patented the Mo cell line’. Furthermore, there is the logical absurdity of recognising that cells somehow ‘spring forth as property of a lab or a researcher’ without prior ownership by another, and before any work or value has been put in to them. POST ‘MOORE’TEM Since Moore, there have been limited cases dealing with similar issues.
In Greenberg v. Miami Children’s Hospital Research Institute, a federal district court found ‘evaporation’ of property rights after voluntary donation to a ‘third party’. However, in a sign of changing judicial attitudes, it has been suggested that this implies a property right did exist at some point. Other cases have found patient or donor property rights in limited circumstances.
In Hecht, rights ‘in the nature of ownership’ where found in sperm cells, as the terms of the storage of the cells stipulated that the patient expected to retain control over the specimen. However, matters concerning sperm and embryos have been treated differently as they involve decision making over potential human life. American legislation dealing with donation and sale of body parts has developed since Moore, but it is not primarily concerned with entitlement to profit sharing from biotechnological discovery.
Despite the continued development of Biotechnology and increased society awareness, it is most likely too controversial to expect a legislative solution in the near future. CONCLUSION Mosk J systematically analysed the facts, and despite the controversial moral and philosophical issues, he made a compelling argument for granting property rights. His analysis of existing legislation revealed the extent of property rights already in existence regarding the use of excised cells. Legislation has since developed and subsequent cases have shown a softening of the approach of the majority.
However, the strength of his judgment is its conceptually broad explanation of property as a bundle of rights, and his brave exploration of its parameters. It is a view that acknowledges the traditional foundations of property law, but also recognises that its legal and philosophical principles have evolved from such one-dimensional, ‘for or against’, limitations. His analysis of the plaintiff’s claim for conversion demonstrates how this transformation allows for the pragmatic manipulation of property’s legal and philosophical principles to adapt to new and emerging issues.