Have you ever stopped to consider what happens to the blood, biopsy or similar sample you give in a hospital setting, or even in your doctor’s surgery? In particular, have you ever stopped to ask: do I still own the sample? Probably, like most people, you would dismiss the question; you gave the sample for a diagnostic test and, your diagnosis is the extent of your interest in the sample’s fate.
But how would your view change if, on closer examination of the consent form, your doctor had assumed all rights to your sample? Add to this the real possibility of the sample being added to a tissue bank at the hospital where you received treatment. Then assume that a researcher extracts part of your DNA from the sample, only to find that is has a valuable medical application; they earn millions in patent royalties, while you the patient get nothing directly in return.
The current legal position
The common law does not generally see the human body as a form of property. For a range of social, moral and practical reasons many of the participants in debates about the handling of tissue samples, human organs, blood donations and the like, a proprietary model is frowned upon. In its report Essentially Yours (ALRC Report No. 96, Commonwealth of Australia (March 2003) 527), the Australian Law Reform Commission (ALRC) noted that:
The traditional position under the common law was that a human corpse could not be the subject of property rights. This rule gained general support in a number of English cases and was generally accepted throughout the 19th century.
Such a standard continues to have an impact on judicial thinking throughout the western world. New York's Court of Appeals decided in 2006 that a patient awaiting kidney transplant could not assert a proprietary interest in a friend's organ, despite the fact that it has been gifted to him for the purposes of his surgery by his friend's widow. In Colavito v New York Organ Donor Network, one kidney which was initially deemed suitable for transplant was subsequently found to be medically unsuitable. However, by this stage the second kidney had been provided to another transplant patient. Ms Colavito (on behalf of her late husband) sued, claiming hospital authorities had unlawfully converted his property. To sustain this action though the appellant had to show that he had a property right in his friend's organs in the first place.
This was a concept the Court refused to accept, relying rather on the precedent of Lord Coke's dictum from the 1700s that “a corpse has no value”. The Court relied on Sir William Blackstone's confirmation of this position in his Commentaries to the effect that:
... heirs have no property right in the bodies or ashes of their ancestors, “nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried”.
The only time such an interest could be seen as in any way pecuniary was when family members could receive damages for the negligent disposal, loss or desecration of a body.
Should the patenting of human genes be seen in a similar light? In its report Genes and Integrity: Gene Patenting and Human Health (Report 99, Commonwealth of Australia, (June 2004), 72), the ALRC noted that patenting of the human genome and human tissue samples offended many people because they saw one individual’s (or corporation’s) ability to own part of another living person as a threat to the latter’s autonomy and dignity. A related theme is the argument that there is something “special” about the human body and its genetic code which is incompatible with concepts of ownership.
An author and former editor of The Economist magazine Matt Ridley is cited approvingly by scientist James Martin (James Martin, The Meaning of the 21st Century: A Vital Blueprint for Ensuring our Future) for his description of human DNA as:
… like a book with 23 chapters-one for each of our 23 pairs of chromosomes, which make up the gene material (macromolecule) found in the nuclei of cells. Each chapter is divided into sections-genes. You have about 30,000 genes. A typical gene has about 10,000 letters (called “nucleotides” or “bases,” each of which can be one of four combinations … It is amazing to think that the entire 23-chapter book is coiled up in the DNA double-helix molecule in every cell of your body.
It may be amazing, but it is also explainable as a code. Martin asserts that it is analogous to a “digital (computer program), we can edit as though we were using word-processing software”. A software program is subject to copyright law and, can be bought and sold. However, Section 32 of the Human Tissue Act 1983 (NSW) specifically states that a person must neither offer, nor enter in a contract for valuable consideration (beyond incidental costs of provision) in exchange for tissue. As a matter of statutory interpretation, the term “person” refers to both real and legal persons (i.e. corporations).
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