Saturday, August 17, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

I. The Debate: Legally Protected Interest in the Body?

The legal debate about individuals claiming property interest in their tissue surfaced in Moore v. Regents of the University of California. This case was subsequently followed by an appeal and a final decision by the California Supreme Court in 1990. It relied upon policy implications and the potential chilling effect on research to find that the plaintiff had no property interest in his excised cells. However, the court acknowledged that the acquisition and use of Moore's tissue cells constituted a physician's breach of fiduciary duty. Succinctly put, the court reasoned that a physician owes a patient a fiduciary duty to the same tissue cells that the patient does not possess a proprietary interest in the first place. The debate as to the correctness of this decision is often faced with compelling points made by the concurring and dissenting opinions. It is beyond the scope of this essay to debate the Moore holding. As Professor Gail Javitt puts it:

[w]hile it is true that there is no legal consensus on the status of human tissue-although the issue has been the subject of scholarly discussion-resolution of the property status is unnecessary in order to impose an obligation on researchers with respect to prospective contributors of human tissue. As both Rebecca Skloot's book and public opinion research reveal, many people do harbor strong possessive, or at least protective, feelings towards their tissue. Such feelings may find their source in religious views of the body-as is the case with Henrietta's daughter, who believed that her mother's soul, in some sense, resides in her cells. Alternatively, they may reside in notions of bodily integrity, i.e. the conviction that, as a matter of autonomy, individuals should retain the power to control the use of their body parts by virtue of the fact that those parts originated in, and once were a part of, their body.

I contend that the Moore court acknowledged a property interest in the patients' spleen that was on one hand subject to being patented by his physician, yet incapable of proprietary ownership by the patient. This article intends to shed light on the unique facts supporting a claim for unjust enrichment in the human body of Henrietta Lacks. For purposes of contextualization, I call for a critical examination of the Moore court's majority opinion's act of erasing the identity of Ms. Lacks as both a person and/or traceable cell line, commonly referred to as the HeLa cell line. In a footnote reference, the Moore court states that [t]he first human tumor cell line, which still is widely used in research, was isolated in 1951. The majority court relegated Ms. Lacks' valuable product line to a year in time without acknowledgement of her identity. Nevertheless, the court relied on the absence of authority to not find a property interest in human tissue cells sui generis in Moore. The court appeared to reason that since the first immortal cell line has not raised a property interest in her cell line (since 1951) then one does not exists in 1993. The obvious silencing of Ms. Lack' valuable contribution (HeLa cells) to society in the seminal case of Moore goes beyond a lively debate on tissue cells property ownership. It speaks volumes to a call for justice for Ms. Lacks' descendants for the benefit conferred to society.

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