"And the question will then arise whether we are still willing to use the concept ... or whether in such circumstances it has lost its purpose, because the phenomena gravitate towards another paradigm...."
Ludwig Wittgenstein, Philosophical Investigations (3d ed. 1958) (translated by G.E.M. Anscombe), at [paragraph] 385 (p.118e).
INTRODUCTION II. BODY PARTS IN CONTEMPORARY SOCIETY III. DIFFERING APPROACHES TO BODY PARTS A. The Body As Owned Property: Creating Market in Body Parts 1. Benefits of Property and Market Treatment 2. Shortcomings of a Property Regime for Body Parts B. Partial Commoditization-Legislative and Regulatory Schemes. C. Trust Paradigm D. Altruism and Consent-The Current U.S. Model E. Opt-Out Policies: Presumed Consent and Routine Removal F. Other Proposals IV. CASE LAW V. REFRAMING THE DEBATE VI. DEFINING STEWARDSHIP TO INCLUDE FIDUCIARY DUTIES TO SOCIETY AND DONORS THROUGH AGENCY PRINCIPLES VII. CONCLUSION I. INTRODUCTION
Today's society struggles with organ shortages. (1) Exacerbating the problem is the absence of a universally accepted paradigm for how justly to treat body parts, such as organs and tissue. Scholarly tomes are filled with articles addressing this subject. Yet confusion still reigns. Limited framing of the question that requires acceptance of either a property/market paradigm or altruistic donor paradigm has failed to lead to a solution, as neither the property nor altruistic solutions are universally accepted. Further, many compromise solutions also fall short as they are either impractical legislative solutions with no realistic chance of implementation or small, piecemeal, too little, too late experiments. Similarly, the case law addressing body parts imparts a sense of disorder and bewilderment. The law is at a loss as to how to address body parts consistently. This failure to reach a generally acceptable solution to the treatment of body parts can be seen as a "failure of [our] imagination." (2)
This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that permits monetary compensation; (2) stewardship, implying altruism and no monetary compensation to the donor; and (3) a compromise solution involving regulatory bodies, which could assign monetary value under certain circumstances.
Each approach suffers from multiple shortcomings. Yet each has its strengths. For example, the need for rules drives, in part, the attraction to a market and property paradigm, with its long-standing and familiar institutions and rules. (3) Yet property is not an exact match, and significant long-term problems regarding how we conceive of ourselves may develop if our legal conceptions of property are mapped directly onto our bodies. Stewardship is a competing concept often relied upon, but it lacks the institutions and rules that the property concept provides. As a vague and amorphous ethical concept, stewardship is poorly suited to be a consistent guide in the evolving reality of a marketplace of human tissue and other body parts. (4) Markets and other distribution systems require consistent off-the-rack rules, as well as ethics. This paper, therefore seeks to look creatively at other bodies of law to see if they can be reimagined and used to give stewardship some backbone, meaning concrete principles that can be applied to the use of body parts. In doing so, it seeks to provide a place for compensation and incentives which property provides but avoid some of the pitfalls of property by preserving the special place that the body has in defining ourselves and our humanity. It seeks to do this by using, as a starting point, one of the law's older bodies of law, agency law. While, like so many other concepts, there is not an exact match with this concept either, there is the potential to take agency law as a starting point and fashion certain principles into a better fit than either property or undefined stewardship.
The first step in the process is to review today's treatment of body parts. Thus, the second section of this paper looks at the markets surrounding the use of body parts. Next it reviews a variety of approaches taken to body parts to discern what is appealing and what is lacking in each approach. Then, after reviewing existing law and literature, this paper asks what a paradigm addressing body parts must accomplish. Finally, it begins to outline how certain aspects of agency law could be relied upon and modified to meet the challenges facing any governing framework.
BODY PARTS IN CONTEMPORARY SOCIETY
"In recent history, we have seen the human body assume astonishing aspects of [commercial] value." (5)
Within the past several decades, modern medicine and bio-technology have revolutionized the uses of the human body. Notwithstanding efforts to protect the body and its parts as a sacrosanct realm, markets have evolved in tissue, organs, and other body parts, as these "human" parts constitute the raw material in multiple industries. The tissue industry over the course of a decade, for example, has evolved from approximately a $20 million dollar industry in the early 1990s to a billion dollar industry in 2003. (6) And the raw component for this industry is the human body, which continues to increase in market value. On average a cadaver generates between $30,000 to $50,000 in value, but a single cadaver can generate over $200,000. (7)
There are thriving markets, both licit and illicit, in the United States and abroad. (8) Regulation of these markets varies, running the spectrum from extensive to nonexistent. (9)
Complicating the industry's ethics is the unfortunate fact that the source of much of its raw material for commercial transactions is derived from body parts often donated by individuals or their families with altruistic motives. (10) As the Inspector General of Health and Human Resources noted, these altruistic feelings conflict with the reality that their donations are the backbone of large-scale commercialized and often profit-driven or, at a minimum, bottom line driven industries. (11) In the tissue industry, for example, donated skin becomes a commodity and is often applied to cosmetic higher dollar value products instead of what might have been envisioned by the donor as the most need driven purpose of, for example, aiding a burn victim. (12)
Moreover, financial incentives have led to many abuses of the system. (13) Multiple scandals have surfaced in which non-consenting donor tissue has been used to generate profits. (14) In 1997, for example, the Los Angeles Times uncovered evidence that the Los Angeles coroner was illegally trafficking in body parts by selling corneas without consent for $335 per pair, which were then resold at $3400 per pair by a tissue transplant bank. (15) In 2004, the David Geffen School of Medicine at UCLA found itself in the middle of a scandal in which cadavers donated by families for medical purposes (e.g., anatomy class) were being sawed into pieces and sold on the open market. (16) As many as 800 cadavers donated to the institution for medical research had been transferred to private companies for use in the medical parts and device industry in exchange for monetary fees. (17) There is no shortage of similar scandals. For example, just last year, a New York dentist, two of his workers, and an embalmer were charged with having illegally taken and traded $4.6 million worth of body parts from corpses in funeral homes. (18) Local prosecutors alleged that these four men had illegally sold human tissue taken from more than 1,000 cadavers at various funeral homes where consent had been forged on papers by the owners of the home without the next of kin's knowledge or consent. (19)
Use of cadaveric tissue is not the only industry arising out of human body parts. Private sales of eggs for tens of thousands of dollars have been reported. (20) Sperm is regularly purchased and sold by fertility clinics. (21) In Texas, a company now offers for sale fertilized eggs that potential parents can select after reviewing the college board scores, race, and genetic background of the egg and sperm donors. (22) Yet, despite the reproductive industry's growth, there is virtually no regulation of fertility clinics and their use of reproductive body parts.
Similarly, research participants or patients undergoing surgery are treated as donors (with no remuneration) when their tissue or other parts are extracted during medical treatment. (23) Those body parts may then be used for biomedical research and product development. (24) In the most famous case to date, John Moore filed suit after discovering that his doctor had developed and patented an extremely profitable cell line initially named after him as the Mo-cell line, (25) which had a market potential to generate up to $3 billion in proceeds by 1990. (26) His cells had been taken and used for research without his knowledge or consent during his treatment for hairy cell leukemia at the University of California, Los Angeles Medical Center. When Moore sued alleging an ownership right in his body parts, a strongly divided California Supreme Court sided with the emerging biotech industry and awarded him no legal ownership interest in his body parts. (27)
Organs represent one of the most highly regulated of the fields using body parts and one of the more publicly visible uses of body parts. (28) The first successful organ...