Property and the body

The thing I love about this blogging gig is coming across other interesting blogs and people. Can I recommend that you read this post over at Balneus by Dave Bath about property in body parts?

The EU generally prohibits sale for profit of body parts, and Dave queries if there should be an exception for the sale of items such as hair for profit. He makes the good point that real hair can be used for wigs for people suffering from alopecia or baldness for other medical reasons (eg, undergoing chemotherapy). I know that some ladies in India sell their hair to be used in hair extensions for Western women. Well, if it keeps the family fed and healthy, why not?

It’s an interesting question. Coincidentally, the other day someone sent me this crazy site where you can purportedly sell your DNA for profit. The idea makes me feel squeamish. No way anyone’s gettin’ near my DNA. It worries me that companies might seek to patent people’s DNA and use the patent to monopolise the pharmaceutical benefits which might be derived from it. Sound neurotic and far-fetched? Uh-uh. Have a look at the case down below and you’ll see why lawyers become such neurotic beasts – they see the worst behaviour from everyone. Anyway, for reasons I will discuss, the sale of DNA would not be legal in Victoria.

It should be noted that, generally speaking, neither the selling nor buying of human tissue is legal in Victoria: ss 38(1) and 39(1), Human Tissue Act 1982 (Vic). However, there is an exception in s 39(2) which provides that the Minister may give a permit to a person to buy human tissue for profit in certain circumstances. Tissue is defined to mean “an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.” Therefore even the sale of human hair or fingernails would not be legal in this State, unless a Minister was prepared to licence someone to purchase hair. Sperm, ova and foetal tissue are not covered by the provisions dealing with donation of human tissue. These types of tissue are covered by the Infertility Treatment Act 1995 (Vic).

As I said in comments at Dave’s site, there’s a famous case called Moore v Regents of the University of California (1990) 793 P 2d 479 about property in body parts. Nasty people like me make poor students write essays about the case.

Moore was treated for leukaemia at the University of California Medical Centre. His spleen was removed as part of his medical treatment. His doctor and a researcher established a “cell line” with his spleen cells. Because the cells were cancerous, they produced a particular protein in large quantities for an indefinite period. They patented the cell line and made a profit. Moore sued them, saying that he had not consented to the use of his cells in this way.

One of Moore’s claims was that the spleen cells were his “property”, and that by using them without his consent, the University had committed the tort of conversion. They had been detached from him, and therefore were separate from him – did this mean they could be owned by him, as they were derived from him? A majority of the Supreme Court of California said that they were not Moore’s property. However, the University was found to have breached its fiduciary duty towards Moore (namely its duty not to profit at his expense without obtaining his consent).

I was trying to think why I find the sale of human hair less problematic than the sale of human DNA. My thought is that there is a distinction between cells which are living at the point of excision from the body (cell lines, ova, sperm, foetuses, blood etc) and cells which are dead at the point of excision from the body (hair, toenails etc).

Still, I think the only way you could safely allow for-profit use of hair and toenail clippings is to create an express exception for it: eg, “a prohibition on making the human body and its parts as such a source of financial gain, excepting toenail clippings and hair.” What are your thoughts?

P.S. Just realised that this is my first post with a category of “property”. I can’t believe it’s taken me this long to post about property law.

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7 Comments

Filed under crazy stuff, Intellectual property, law, law reform, morality, property, technology

7 responses to “Property and the body

  1. LE said:

    It worries me that companies might seek to patent people’s DNA and use the patent to monopolise the pharmaceutical benefits which might be derived from it. Sound neurotic and far-fetched?

    I’ll cut and paste from a response back on my original post:

    Well, assuming your DNA is pretty close to everyone else’s, the Darth Ventners of this world – and the others who are just pillaging the results of the Human Genome Project – already have. What I particularly object to here is the pathetic way patents are being issued for sequences and the proteins that are derived from them when the pirates don’t even know what they do. If anything is the common property of all humanity, it’s our DNA sequences.

    Anyway, patents are supposed to be for inventions, not discoveries.

    And as for stupid patents: you’ve heard about how a Melbourne lawyer was awarded an “Australian Innovation Patent” for the wheel (actually a “Circular Transportation Facilitation Device”).

  2. cynic

    this from mumble.com.au
    “July 11 (pm) Casualties in the Newspoll wars
    I think Dennis Shanahan wrote this this morning (as opposed to yesterday). The “PhD” mentions refer, I believe, to me.
    A courtesy call from Editor-in-Chief Chris Mitchell this morning informed me that the paper is going to “go” Charles Richardson (from Crikey) and me tomorrow.
    Chris said by all means criticise the paper, but my “personal” attacks on Dennis had gone too far, and the paper will now go me “personally”.
    No, I’m not making this up.
    If they only get as personal as I get with Dennis, then it should be tame, as I don’t believe I’ve ever criticised anything other than his writing.
    And to think I described Dennis, in a chapter in a book being launched this month, as (with no sarcasm) “a fine journalist”.
    All very strange. And – I’d be lying if I didn’t admit – a little stomach-churning.”
    J-HO has got to go NOW

  3. Therefore even the sale of human hair or fingernails would not be legal in this State, unless a Minister was prepared to licence someone to purchase hair.

    Are we discriminating against chemo/alopecia patients and condemning them to spot-them-a-mile-off rugs?
    Does the EU charter (not enforceable, but the Nordics are usually ahead of the game) explain the unfortunate Finnish Trade Minister, Mauri Pekkarinen?

  4. I wonder if the relevant distinction is not death of the cell, but more to do with what can be considered more intrinsic to a person’s being. And either criteria needs serious analysis, given what hair and nails can, with the assistance of current technology, actually reveal about an individual.

    I thought this might interest you:
    http://www.guardian.co.uk/nuclear/article/0,,2123009,00.html

    Almost the plot for a horror movie.

  5. I’ve always wanted to see an “individual sequence” copyright act. One where identifying or novel sequences could only be copied/used for legitimate purposes unless with the copyright holder’s permission.

    Don’t know how I’d go about explaining a cancerous growth though… It’s novel, but novel in the context I was thinking was of a genotypic novelty for the whole organism, rather than a growth.

  6. Pingback: Club Troppo » Missing Link, (Black) Friday 13 July

  7. Dave: that Mauri Pekkarinen is one scary looking dude. I sure hope that’s a toupee, not his real hair. Otherwise he’s got some seriously weird follicle action happening.

    Tony Mokbel might have been more convincing with a real hair wig instead of the terrible toupee he was wearing when he was caught. Incidentally, it was being auctioned on E-Bay.

    I have been thinking further and there must be some kind of exception for hair. Otherwise how can people get hair extensions? I’m sure hair extensions are real hair.

    Oanh: very interesting point! If you took a hair follicle, then you would be able to extract DNA from it, because the follicle is a cell containing DNA. If you cut the hair above the follicle, you would not be able to get information about the DNA.

    But you can still get a lot of information out of cut hair. A recent analysis of a lock of Beethoven’s hair, discovered that he probably suffered from plumbism or lead poisoning.

    So: definitely privacy issues there. What if a hairdresser stole a lock of hair from a celebrity, and sold it to the paparazzi who then analysed it and tried to establish whether that celebrity took drugs? Perhaps that’s better off being dealt with by privacy laws.

    Bruce: I like the idea of limiting patents over genetic sequences. The cell line issue is an interesting one, isn’t it? One of the issues in the case was the fact that the cells were harmful and therefore they had to be excised from Moore to save his life. The cells are cultivated merely to produce a particular protein, and could not develop into an independent living organism. In fact, they would die unless the scientists kept culturing them. Also raises interesting questions of what “living” means.

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