Whose body is it anyway? Human cells and the strange effects of property and intellectual property law.

AuthorFeldman, Robin
PositionSymposium

INTRODUCTION I. PROPERTY RIGHTS IN HUMAN CELLS II. WHERE DOES NATURE END AND HUMAN INVENTION BEGIN.'? CONCLUSION INTRODUCTION

There are many aspects of our lives over which we can exercise what can be called ownership, control, or dominion. However one conceptualizes ownership, it is clear that people can hold such rights in many things, ranging from more concrete items, such as automobiles, jewelry, or a plot of land, to more abstract concepts, such as our labor, our writings, our innovations, and even our commercial image.

Whatever else I might own in this world, however, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin other than with the components of the tangible corpus that all would recognize as "me"?

The law, however, does not view the issue so neatly or clearly. Through the rambling pathways of property and intellectual property law, we are fast approaching the point at which just about anyone can have property rights in your cells, except you. In addition, with some alteration, anyone can have intellectual property rights in innovations related to the information contained therein, but you do not.

I should be clear at the outset that I am talking about property and intellectual property rights to cells when they are no longer in your body. The sanctity of control over one's body remains reasonably intact, as long as the cells are attached to you. (1) When cells are no longer attached, however, the legal landscape shifts, and the resulting tableau has a strong effect on the choices one can make with those cells that do remain in the body.

As so often happens in law, we have reached this point not by design but by the piecemeal development of disparate notions. Various doctrinal strands have emerged in isolation of each other, each appearing to solve a particular problem in its own domain. When gathered together, however, the doctrines form a strange and disconcerting picture.

Consider a human cell, or a group of cells, being used for research purposes. It could be a blood sample or perhaps a piece of tissue left over from a biopsy. When a researcher is working with a sample of human blood or tissue, the researcher, or the lab, has a property right in those cells. Similarly, if the researcher isolates a protein or a segment of DNA from that sample, the researcher or the lab has property rights in the tangible isolated elements.

Others may ask for a sample of the tissue or the cell lines developed from that tissue. (2) These items are treated under contract law according to agreements related to the transfer of tangible property, commonly called "material transfer agreements."

In addition to property rights, a researcher who isolates something from the sample also may be able to apply for patent rights on that isolated product. If the researcher successfully manipulates the cell, forming a novel cell line or producing a new protein, the researcher may receive a patent on the protein or cell line as a new product. (3) In addition, information from the coding sequences in those cells may help form the basis of a diagnostic or therapeutic patent. In short, a researcher with a human tissue sample may have property rights in that sample. Through observation, isolation, and manipulation of the sample, the researcher may also obtain intellectual property rights.

How about the human who contributed the sample in the first place? The California Supreme Court has refused to grant property rights to individuals in the cells of their bodies when those cells are no longer in their bodies. (4) A federal district court reached a similar result. (5) The discussion in the cases suggests distaste for the possibility of treating human body parts as a form of property, as well as serious concerns about interfering with advancements in medical science. (6) As a result, the person whose body provided the sample has no property rights, although we seem to have no problem giving others property rights in those cells.

The human who contributed the cells has no intellectual property rights either. Patent rights are based on manipulation or use of elements within those cells. The cells as they exist in one's body are in a state of nature and cannot be the subject of patent rights. (7) Thus, although others can end up with intellectual property rights related to those cells, the person who contributed the cells can claim no such rights by virtue of his or her association with the cells.

Human beings do have some rights in relation to the cells of their body when the cells are no longer in the body. Those rights, however, generally are grounded in notions of the fiduciary duty that a doctor owes to a patient and are frequently centered on the doctor's obligation to obtain informed consent. (8) Although the question has not been approached precisely in this manner, humans do not seem to have any particular right to their cells or to the information contained in their cells, outside of their relationship with health care providers.

I have suggested, in a different forum, that the intersection of interests in this area would be well served by a reconceptualization of the relationship between the state and the individual. (9) Much as one might hope for such a paradigm shift, however, I recognize the importance of working with the tools that we have. Significant progress can be made by a more careful and considered application of current property and intellectual property doctrines. Specifically, in our enthusiasm for the truly groundbreaking and spectacular work of the scientific community, we have, at times, granted rights that are far too expansive. In the process, we have lost sight of the interests of the individual and the interests of scientific progress on the whole. Rushing to reward and incentivize, we have created opportunities for patent holders to arrogate to themselves large swaths of territory, well beyond what should be permissible, and they have taken advantage of our invitation. Perhaps it is time to reconsider our approach.

Part I of the Article will examine doctrines of property law in relation to ownership of human cells that are no longer within the body. The Part concludes that under traditional property law concepts, individuals should have a continuing property interest in their own cells. Part II of the Article will examine the more challenging question of intellectual property rights in innovations related to cells and cellular components outside of their natural state in the human body. The Part concludes that modern patent decisions are granting patent rights far too broadly to those who innovate with human cells, cellular components, and cellular information. A more careful and considered application of patent law doctrines would limit the patent rights granted, which would better reflect the interests of society as a whole in maintaining access to the building blocks of science for scientific research and innovation. Although individuals do not have patent rights in their own cells, a proper application of patent law principles would benefit individuals, at least indirectly, through increased competition and access.

  1. PROPERTY RIGHTS IN HUMAN CELLS

Henrietta Lacks was a poor black woman who died of a particularly virulent form of cervical cancer in the 1950s. (10) Mrs. Lacks died eight months after she was diagnosed with cancer, leaving behind a husband and five children. Although she would never know, Mrs. Lacks also left an astounding legacy for medical science. Using the aggressive nature of Mrs. Lacks's cancer cells, researchers developed a method for reproducing human cells in the lab. Mrs. Lacks's cells became the first human cells to reproduce prolifically in a laboratory setting, and scientists have reproduced some fifty million metric tons of her cells over time. (11) The so-called HeLa cell line has contributed to major developments in the field of life sciences, including the polio vaccine, cancer treatments, and in vitro fertilization. (12) As one book reviewer noted, Henrietta Lacks became "the godmother of virology and then biotech, benefiting practically anyone who's ever taken a pill stronger than aspirin." (13)

In short, research on Mrs. Lacks's cells paved the way for a wealth of stunning developments in the life sciences industry. Critics have noted, however, that her family has not shared in that bounty. (14)

A similar set of facts formed the basis of Moore v. Regents of the University of California. (15) In 1976, John Moore was treated for leukemia at UCLA Hospital. In the course of his treatment, as well as follow-up care for seven years, doctors at UCLA Hospital removed his spleen and took samples of tissue and blood. (16) The doctors told Mr. Moore that the procedures were necessary for treatment of his life-threatening cancer. They did not, however, tell him that his cells were unusual and offered great potential for scientific research. (17)

Working on cells from Mr. Moore, researchers at UCLA established the "Mo" cell line. By the time the case came to trial, UCLA had received hundreds of thousands of dollars in revenue from the cell line, and experts estimated that the value of the line could reach into the billions. (18)

Mr. Moore sued the medical center and his physicians asserting a variety of claims, including ones related to his property rights. In the property claim, Mr. Moore asserted that he had never consented to the use of his cells in potentially lucrative medical research and that using them in this manner constituted a conversion of his personal property. (19) As described above, the California Supreme Court rejected the claim, concluding that whatever rights Mr. Moore might have had, they did not amount to property or ownership rights. (20)

In reaching its decision, the court essentially used the following logic: When cells are removed from a person's body, the disposition of those...

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