Donors Of Body Parts Lose Right To Profits

Main Category: Transplants / Organ Donations
Article Date: 06 Dec 2007 - 1:00 PDT

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As genetic research increasingly leads to new and profitable ways to predict, diagnose, and treat disease, disputes mount over the rights to those profits. Donors claiming body parts as their property have sued for a share of profits, yet property law paradoxically fails to protect people's rights to their most private possessions: flesh and blood. Professor Radhika Rao of the University of California, Hastings College of the Law reviews court rulings over rights to body parts in an article published in The Journal of Law, Medicine and Ethics.

In the eyes of the courts, body parts used for research become the property of those who put them to productive use, such as researchers and universities. Yet the donors who supply these body parts are assumed to give up their ownership rights when they provide a blood or tissue sample. Rao describes the example of Moore v. Regents of the University of California, in which Moore lost his plea for profits resulting from a cell line that California researchers created from his spleen. This case was followed by Greenberg v. Miami Children's Hospital, in which the researchers who isolated the gene for a rare genetic disease were granted patent rights to the gene over the individuals who donated the blood, tissue, and other body parts that made the research possible. Because the researchers effectively owned the gene, they could prevent genetic testing to determine whether individuals possess the gene or even research to provide a cure for the disease.

Donors who have gained legal control over their body parts typically did so by avoiding property law. Rao describes a group that used contract law to maintain control over their own genetic material and a share of the resulting profits. She also writes of an Icelandic woman who successfully invoked privacy law in a dispute over the use of her father's medical records.

Both privacy and contract law, however, offer donors limited protection. Rao concludes this review by calling for a fresh interpretation of property law as it applies to body parts.

"Property law systematically favors those who use body parts for profit over the donors who make such ventures possible," says Rao. "Perhaps it's time to rethink property law to protect donors from exploitation."

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