Ms. Aparna Sojan
One might naturally speak of ‘my body’ and infer that, because it is ‘my body’, I can determine what is done to it or its parts. So, a typical answer to the question as to “Do you own your body?” would be “Yes, I do own my body.” Unfortunately, this is not always true. The courts have always hesitated to recognise a person’s property right over his own body and biological materials separated from him. However, it does accord proprietary interest to third parties who, with their expertise, isolate such bodily materials from a human being. With rapid advances in medicine and science, it becomes imperative to determine as to whether and to what extent a donor should have proprietary rights over biological materials that have been separated from him.
CONCEPTIONS OF PROPERTY
There is no single conception of property. It means different things to different people. The term ‘property’ can be used to describe ‘things.’ Another perspective is that ‘property’ indicates ‘legal relations’ among persons and things.[i] What distinguishes a property right in a thing from other rights in the same thing is its breadth of enforceability.[ii] Property rights are confined to those rights that can be asserted against the whole world at large. Further, a person is presumed to have a continuing interest over a property which has become vested in him unless there is positive evidence that it has been divested, say by way of sale or gift.
There are two mains schools of thought concerning property rights in human body. One of these, generally referred to as the natural rights theory, is endorsed by John Locke. According to him, “every man has a property in his own person.”[iii] This stems from the reasoning that man is duty bound to God to preserve himself and His other creatures which can be realised only when we have exclusive rights to ourselves and other objects. Further, his theory also goes on to state that when we mix our labour onto something, it becomes our property on account of the value added to it by us. Locke also viewed the resources in earth as owned by all the humanity and not as res communis. However, if a person’s labour entitles him to legitimate ownership over an object, then ideally his ownership should be confined only to the value that he added. Robert Nozick, a staunch critic of Locke’s labour theory illustrates the paradox that the theory propagates in this way: “If I own a can of tomato juice and spill it in the sea…do I thereby come to own the sea or have I foolishly dissipated my tomato juice?”[iv]
The second line of thought refuses to accord property rights over human body as it would amount to demeaning the dignity and respect for human life. An alternate view is that “people do not own, but have limited property rights in their bodies.” With proponents such as Stephen Munzer, this theory propounds “transferability” as the distinguishing criterion of body rights that are property rights. According to him, bodily rights that protect interests or choices other than the choice to transfer are regarded as personal body rights. Those rights that protect the choice to transfer are considered property rights.[v] Going by Munzer’s classification, this article would be touching upon the latter category of rights, i.e., the bodily rights that are property rights.
WHO OWNS AN EXCISED BODY PART?
Common law has been reluctant to recognise property rights in human biological materials. This dates back to Sir Edward Coke’s proclamation in 1644 that a corpse was ‘nullius in bonis’, i.e., it cannot be considered as property.[vi] This was primarily brought about so that corpses could be prevented from being stolen, a widely prevalent practice in those times.
The common law recognition of the ‘work or skill’ exception represents another breakthrough in the discourse on property rights. This exception was formulated in Doodeward v. Spence[vii] where a police officer confiscated the corpse of a pair of stillborn conjoined twins which was being exhibited in the public by the plaintiff. The plaintiff sued for the return of his property which was denied on the premise that human body could not be the subject of any proprietary action. The High Court of Australia reversed this and observed that a person would have right to possession of a human body or a portion of it when he “has by lawful exercise of work or skill so dealt with a human body or a part of the human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial.” This is clearly a manifestation of the Locke’s labour theory.
The work or skill exception was adopted by the English courts for the first time in Dobson v. North Tyneside Health Authority[viii] where the Court of Appeal recognised the next-of-kin’s right to possession of the body for burial as well as the proprietary status of removed body parts once they were subjected to the application of human skill. AB v. Leeds Teaching Hospital NHS Trust & Cardiff & Vale NHS Trust[ix]extended this principle to human biological materials as well by holding that the post-mortem and subsequent selection and preparation of tissue blocks for histological purposes involved the skill and work of pathologists and hence, they had property rights over the excised material.
Moore v. Regents of the University of California[x] is a monumental decision as it has significantly furthered the jurisprudence on living persons’ property rights over excised biological materials. Moore had given his written consent to spleen removal and also donated other samples. He was kept in dark of the research being conducted by the defendants over his T-lymphocytes and the development of a cell-line from his primary cells. The defendants later on acquired a patent for using the said cell-line which then had a commercial value of around 3 billion dollars. It was only after the defendants had entered into commercial agreements with other research institutes conferring rights of usage of the cell-line that Moore was notified of the developments. The Supreme Court of California held that while Moore’s action for breach of fiduciary duty could be maintained, he had no claim for an action for conversion as Moore should have retained a continuing interest in his spleen even after its removal. The majority negated Moore’s claims to the patented cell-line and its derivatives by stating that the latter, owing to the patent granted, were ‘factually and legally distinct’ from the cells extracted from his body.
Greenberg v. Miami Childrens Hospital[xi] is the next decision that needs to be discussed. The case was concerned with Canavan disease, a brain disorder that is inherited and fatal. Certain parents whose children were diagnosed with the said disease had cooperated in the defendant’s research so as to isolate the genes responsible for the spread of the disease and thereby formulate a test that could be administered. The defendants sought to obtain a patent over the said test. The plaintiffs alleged that had they known of the defendant’s intentions to commercialise the test, they would have considered donation of samples to other researchers whose objectives allied with their own. This decision heavily relied on the reasoning adopted in Moore and arrived at the same conclusion that property rights over blood samples and tissue samples would evaporate as soon as it was voluntarily handed over to a third party. [xii]
Both Moore and Greenberg have failed to resolve many legal uncertainties. For instance, when a human being transfers a biological sample for a specific purpose, the transfer is conditional. Clearly, no complete transfer of property rights takes place in such a circumstance. At the most, it may be equated as a conditional gift or a bailment.[xiii] Furthermore, both these decisions did not go on to state that body parts removed from a person’s body does not constitute property. Rather, it impliedly postulated that the source’s property rights would diminish once it was removed from his body with his consent.
The courts have hesitated to recognise property rights over human biological materials primarily because of their own predicaments in arriving at a decision as to who would ultimately have an ownership over it. On the one hand is the source of a biological material who needs to have a continuing proprietary interest in what has been removed from him so that he can control its uses and also share in the economic benefits that it might entail, and on the other is the researcher who, with his painstaking labour and exercise of skill, isolates and develops something unique out of it.
It is often argued that granting property rights to a person over his own body and bodily materials would stifle research as the researchers would have to compensate the participants for their contributions. It might also lead to situations wherein potential research participants would refuse to contribute their body material unless a hefty sum is paid to them. Further, the scheme of remunerating the source of body material would inarguably place an undue burden on those scientists whose work might not reap profits. However, if there is no legal regime to recognise the rights of donors, altruistic persons who would have ordinarily donated their body material might be disinclined to do so and also might feel exploited as every other person involved in the project would mint money out of it.[xiv] So, if a compensatory scheme is worked out, it might motivate more people to contribute to research instead of thwarting its prospects.
Moreover, if researchers were to get the entire proprietary right over a biological material, then they could easily sell these materials to other people whose intentions in treating the bodily material are unknown. At the most, the donor would be able to maintain an action for breach of fiduciary duty against those researcher or scientist to whom they had donated the materials. In such scenarios, establishment of proprietary interest is crucial to prevent unauthorised use of their bodily material by strangers.
There is an urgent need not only to recognise property rights of every person over their own body, but also to duly enforce every person’s continuing interest over biological materials excised from their body. The law should entitle an individual to evoke property law and maintain an action as and when their rights in their biological material are called into question. The individuals who contribute their biological materials to a research should be in a position to control its subsequent use and disposal and should also be entitled to a just amount of remuneration from the profits that it would entail. Rather than proliferating commodification, this would only incentivise them to participate in research without prejudicing their autonomy and dignity.
Ms. Aparna Sojan is a 4th Year, B.A., LL.B. (Hons.), student at the National University of Advanced Legal Studies, Kochi.
[i] STEPHEN R MUNZER, A THEORY OF PROPERTY 22 (1st ed., 1992).
[ii] ALISON CLARKE AND PAUL KOHLER, PROPERTY LAW: COMMENTARY AND MATERIALS 35-38 (1st ed., 2005).
[iii] JOHN LOCKE, TWO TREATISES ON CIVIL GOVERNMENT 204 (1884).
[iv] ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (2nd ed., 2013).
[v] Supra note 1.
[vi] Samantak Ghosh, The Taking of Human Biological Products 102 CAL.L.REV 511, 518 (2014).
[vii] Doodeward v. Spence, (1908) 6 CLR 406 (HCA).
[viii] Dobson v. North Tyneside Health Authority,  1 WLR 596 (CA).
[ix] AB v. Leeds Teaching Hospital NHS Trust & Cardiff & Vale NHS Trust,  EWHC 644 (QB).
[x] Moore v. Regents of the University of California, 793 P 2d 479 (Cal SC 1990).
[xi] Greenberg v. Miami Children’s Hospital, 264 F Supp 2d 1064 (S.D. Fla. 2003).
[xii] Donna M. Gitter, Ownership of Human Tissue: A Proposal for Federal Recognition of Human Research Participants’ Property Rights in Their Biological Material 61 WASH. & LEE L. REV. 259, 325-326 (2004).
[xiii] Rohan J. Hardcastle, Legal Protection of Human Biological Materials (2004) (unpublished thesis, Oxford University).
[xiv] Supra note 12.