My last blog dealt with the original rule that there is ‘no ownership in the human body’ and briefly discussed the origins of the ‘work and skill’ exception.
I now move on to a bigger and better question, what about tissue or other matter taken from your body? Surely, you would have ownership of that, right?
Well, let’s just say it’s complicated.
I would like to introduce you to Mr John Moore of Seattle USA.1 Mr Moore consulted with Dr Golde after being diagnosed as suffering from hairy-cell leukaemia. As part of his treatment Mr Moore had his spleen removed in October 1976 by Dr Golde. The operation saved Mr Moore’s life.
What Mr Moore did not know is that Dr Golde took his spleen and used it as part of research. In fact, Dr Golde knew that Mr Moore’s blood products could have great commercial uses before the operation to remove his spleen was undertaken.
Over the years of treatment Dr Golde took samples of Mr Moore’s blood, skin, bone marrow and sperm. All of which were used in research conducted by Mr Golde for his own profit.
In 1979 a ground-breaking cell line was developed from Mr Moore’s cells and a patent granted over the cell line in 1981.2 Dr Golde received approximately $15 million sale of the cell line and ultimately said to be $3 billion profit.3
Mr Moore was not asked to sign any consent forms for the research until 1983, when he declined to provide consent. When Dr Golde pressured Mr Moore to provide the consent he became suspicious and engaged a lawyer, this is when he found out what his cells had been used for.4
Mr Moore sued the doctor. One of the causes of action was conversion, which is the unauthorised interference with another’s possession or right to possession of goods. The problem for Mr Moore was that for his claim to be successful he needed to show that the cells taken were actually his property and that he had ownership of them.
Unfortunately for Mr Moore the US Supreme Court found nothing to support the claim that a person retains a sufficient interest in removed cells to support a cause of action for conversion.5
Let’s travel back to Australia and fast forward a couple of decades to 1996, here we meet an individual who wanted to have a paternity test undertaken with the use of samples that had been taken from a deceased person.6 The issue was raised whether the samples constituted property for the purposes of the legislation.
Interestingly, in this case the Judge held that when the samples were fixed in paraffin they were transformed into objects capable of constituting property.7 As such, he applied the ‘work and skill’ exception which I explained in my previous blog. This meant that she was able to obtain the paternity test. Although, the exception was later limited in AW v CW to samples taken when a person was alive and not those taken after death.8
In the last two blogs I have touched on a limited fraction of the cases and relevant exceptions to the ‘no property in a human body’9 rule. However, even in consideration of the cases not discussed the exceptions made by the Court arise from ‘somewhat quirky fact situations where the Court has not been forced to give any continuous consideration to the broader issue of the body as property.’10 As such, there are only very limited circumstances when someone might have control or property rights of a human body or part thereof.
There are of course other questions to consider as well, what if Mr Moore felt that a part of his soul was in the cells removed and then used in research without his permission.11 This raises questions of religion, identity and self-autonomy. It’s a good thing I am a lawyer and not a philosopher and as such I am going to leave that issue right here!
As you can imagine, this whole area of the law becomes more complicated as our technology improves. Maybe Frankenstein was a prediction of the future rather than fiction? Although, if this is the case would the creator then own its creation? Perhaps the ‘work and skill’ exception would apply?
1Moore v Regents of the University of California and Ors 793 P2d 470 (Supreme Court of California 1990)
2 Debra Mortimer, ‘Proprietory Rights in Body Parts: The Relevance of Moore’s Case in Australia’ (1993) Vol 19, No 2 Monash University Law Review 218, 1.1
3 James Elderman, ‘Property Rights to our Bodies and to Their Products’ (Paper presented at the Australian Association of Bioethics and Health Law Conference) Western Australia 3October 2014, 13
4Moore v Regents of the University of California and Ors 793 P2d 470 (Supreme Court of California 1990)
6Pecar v National Australia Trustees Ltd (The Estate of Ivan Urlich Deceased) (unreported) (96002518) Number 2518 of 1996, 27 November 1996
7 Richard Taylor B Econ, LLB (Hons), ‘Human Property: Threat or Saviour?’ (2002) Vol 9 No.4 Murdoch University Electronic Journal of Law, 33
8 Richard Taylor B Econ, LLB (Hons), ‘Human Property: Threat or Saviour?’ (2002) Vol 9 No.4 Murdoch University Electronic Journal of Law, 33
9 Haynes's Case (1614) 12 Co. REP. 113
10 Evelyn Tsitas, ‘The Role of the Creative Arts in Bioethical Debates’ (Paper presented at the Australian Association of Bioethics and Health Law Conference) Queensland July 2006, 258
11 Debra Mortimer, ‘Proprietory Rights in Body Parts: The Relevance of Moore’s Case in Australia’ (1993) Vol 19, No 2 Monash University Law Review 218, 1