Defending Henrietta Lacks: Justification of Ownership Rights in Separated Human Body Parts.

AuthorShevelev, Arseny

TABLE OF CONTENTS I. INTRODUCTION 958 II. THE CONCEPT OF OWNERSHIP IN SEPARATED BODY PARTS 962 A. The Recognition of Separated Body Parts as Property as a Necessary Prerequisite for the Emergence of Ownership: Fluctuations in Case Law 962 B. Borderline View: Separated Body Parts are Things, but Sui Generis Things? 972 C. Allocation of Rights of Ownership in Separated Body Parts 978 III. OTHER CONCEPTS OF RIGHTS IN SEPARATED BODY PARTS 994 A. Personality Rights in Separated Body Parts 995 B. Copyright in Separated Body Parts 1002 C. Sovereign Possession of Separated Body Parts 1003 IV. CONCLUSION 1005 I. INTRODUCTION

In 1951, a Black woman and mother of five named Henrietta Lacks came to The Johns Hopkins Hospital with complaints, having been diagnosed with cancer and having her cells removed from her body by doctors in the complete absence of her consent. (1) Although Mrs. Lacks ultimately passed away that year at the age of thirty-one, it was then that the story of this woman's social ministry began. HeLa cells-named after the first letters in Henrietta and Lacks--decisively changed the world, playing an extraordinary role in a host of medical breakthroughs that saved myriad lives. (2) Regarding Henrietta, whose impact on the world is hard to overestimate, a fascinating book was written that became a bestseller, (3) a film was made about her, (4) and she was portrayed in a painting exhibited at the National Portrait Gallery in the hall devoted to portraits of influential people. (5)

At the same time, Henrietta's story is not only an ongoing chronicle of the celebration of her contributions, but also an example of blatant discrimination bolstered by the legal order and the living law operating through judges. From a legal perspective, Henrietta's case is first and foremost the situation of a racially discriminated-against woman who has been estranged from her own body and deprived of legitimate rights to derivative parts separated from it. Moreover, the discrimination described has not fallen into oblivion and is not in the distant annals of history but has been perpetuated and continues in its most overt forms to the present day. Big pharmaceutical companies continue to misappropriate multibillion-dollar profits from the use of unique immortal cells, (6) illegally removed from Henrietta's body without her consent, thus demonstrating their neglect of her rights to the separated parts of her body and belittling her contribution to the development of medicine. Today, Henrietta's descendants seek to defend the rights of their ancestress, suing in federal court in Baltimore against a company that skillfully took advantage of the "racially unjust medical system." (7) Indeed, it is hard to disagree that "[i]t is outrageous that [a] company would think that they have intellectual property rights to [Henrietta Lacks's] cells, . . . when her family, her flesh and blood, her Black children, get nothing." (8) Accordingly, honoring Henrietta and realizing that her case can be a lodestar for the universal recognition of a person's rights to their own body, (9) we wish to devote this Article to the justification that the rights to the separated body parts belong to the source of the parts in question, explaining, inter alia, the legal nature of these rights.

Henrietta's earthshaking story is the finest proof and culmination of the truth that the human body has always been under the scrutiny of law. Although this fact is obvious, its recognition is only a relatively recent phenomenon. The human body used to be concealed and even dissolved in the person themselves, becoming inaccessible to the direct perception of the law, which, due to the peculiarities of legal technique permeated by the behavioral paradigm, discussed the human mainly as a person (i.e., an addressee of commands, orders, and commandments). Although, in reality, there is no doubt that the state, which formed law, was interested not in the person of the human, but in their body, (10) which is a source of physical and intellectual strength and, therefore, a valuable resource that can be consumed by the state. In this sense, the law's regulation of the human body is a secret of Polichinelle (an open secret) dating back hundreds and thousands of years. However, it should be noted that the law regulated the human body as a whole, and the law was not interested in the separated parts of the body, which it did not pay attention to. There is an understandable reason for this: only recently, due to the development of science, have the separated parts of the body ceased to be perceived as something useless--having, at best, a value for anatomical research. (11)

Separated body parts have acquired a significant economic value, (12) and this is due to the possibility of using body parts for medical and cosmetic purposes. (13) The stated value of severed body parts, as well as the extensive involvement of severed body parts in economic circulation, requires a clear definition of the legal status of such body parts, as well as the rights arising in relation to them. In order to fulfill this purpose, we will consider the concepts of proprietary rights in separated body parts in Part II. Part III will consider the personality rights, that is rights which derive from the very personality of the human from whom the body parts have been severed and which are designed solely to protect the interests of that human as a person, and other rights over these body parts that have been proposed in the literature or case law. (14)


    Conditio sine qua non of the right of ownership, as we know, is property. In this connection, the presentation of the concept of ownership in separated body parts begins with the proof of their recognition as belonging to the regime of property (discussed in subpart A), but, since in our time not all things have the same capacity to be the object of ownership, we cannot disregard the perception of body parts as things sui generis, having a special nature and a different regulation of the regime of ownership (discussed in subpart B). This Part concludes with the procedure for determining who owns the parts separated from the person's body discussed in subpart C.

    1. The Recognition of Separated Body Parts as Property as a Necessary Prerequisite for the Emergence of Ownership: Fluctuations in Case Law

      The most common view is that all parts of the body, from the moment of detachment, become property that can be owned. (15) This position has a fairly simple but logical justification; the fact that the whole human body is not an object of the right of ownership (16) does not mean that the separated body parts will not be an object of the right of ownership as well. (17) In essence, such an argument is a part of the broader thesis that all objects of the material world are property if they are not the subjects of rights, and such a thesis was merely applied to detached parts of the body. (18) Note that law did not immediately conclude that the detachment of a part of the body from a person allows it to be given the character of property, which is at the same time an object of proprietary rights. In the early stages of the development of law, cases where separation, even if not by itself but in conjunction with other factors, transformed the part separated from the person into an object were of revolutionary and incommensurable importance.

      One of the first, and in our opinion, major cases to guide the determination of the substantive status of a human body part was Doodeward v. Spence, (19) where detachment played a decisive role. Despite the fact that this case concerned the acquisition of ownership in parts of the body of a deceased person, it should be noted that it may well be applied mutatis mutandis to parts of the body of a living person. (20) Arguments to the contrary are excessively oblique and formalistic, (21) since they wish to apply this case only to the cases with the exact fact patterns but not similar ones. Therefore, they cannot become a guiding precedent that serves as an answer to the question whether ownership in a part of the human body may be acquired. In this case, Judge Griffith, in characterizing the possibility of acquiring ownership in a corpse, emphasized that the common law purpose of a corpse's existence is its burial, and only by changing its purpose, such as through work and skill, does it become subject to ownership. (22) The essence of this work and skill exception was summarized in the recent Re Cresswell case which requires that (1) the person claiming rights in rem over the dead body shall legally possess it, (2) the person has done some work on the dead body or parts of it, and (3) the body, as a result of the work, has acquired attributes which it did not have before the work was done. (23)

      But why exactly is burial the purpose of a corpse's existence? Burial reflects the traditional Christian view of the natural state of the dead body, which, being created from the earth, is to be returned to the earth--to its original position. (24) But if the natural state of the corpse is to be returned to the earth, what is the analogue for the separated parts of the human body? It seems that these parts, designed to serve the human and their purposes, also have a natural purpose to return to their original position (i.e., to reunite with the person, so until they change their purpose, they also cannot be an object of ownership).

      Thus, both in the case of dead and living bodies, body parts can only be property insofar as they cease to serve the purpose of returning to their original position and acquire some other purpose. It was correctly noted in R u. Kelly, (25) which was essentially aimed at interpreting Doodeward, that body parts can become property insofar as they have "a use or significance beyond their mere existence." (26) Judge Griffith suggests acquiring property by...

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