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

II. The Claim

Dr. Howard Jones - the first Johns Hopkins physician to diagnose Ms. Lacks with cervical cancer - notes that, [s]cientific progress and indeed progress of all kinds is often made at great cost, such as the sacrifice made by Henrietta Lacks. This essay frames the so-called sacrifice made by Ms. Lacks in term of unjust enrichment. Most recently, the story of Ms. Lacks has been met with a degree of astonishment that either warrants utter disbelief and/or deep gratitude for her gift. However, the word sacrifice is not an accurate assessment of what happened in the instant matter. Ms. Lacks' tissue cells were not only taken and commercially used without her consent, but she was neither informed of the nature of the proposed procedure, nor its risks of infertility. Upon Ms. Lacks' admission to Johns Hopkins, she signed an OPERATION PERMIT, which read, I hereby give consent to the staff of The Johns Hopkins Hospital to perform any operative procedures and under any anesthetic either local or general that they may deem necessary in the proper surgical care and treatment of: ___________. Ms. Lacks printed her name in the blank space, which was duly witnessed. It is without question that Johns Hopkins, through its physicians, acted within the scope of the expressed consent form as it relates to putting Ms. Lacks under anesthesia for the radium cancer treatment to address her diagnosis of invasive cervical carcinoma. I argue that the interference of Henrietta's interest by the wrongful taking and transferring of tissue cells occurred when the surgeon on duty shaved two dime-sized pieces of tissue from [Ms. Lacks'] cervix: one from her tumor, and one from the healthy cervical tissue for research purposes without her knowledge or consent. This act exceeded the scope of the operation permit signed by Ms. Lacks.

Furthermore, the application of a critical race feminist lens would allow one to critique the her-story narrative of Ms. Lacks' multidimensional existence as a raced, classed, and gendered patient marginalized in history, at best. At the time of Ms. Lacks' treatment, it had been the practice of Johns Hopkins to warn patients about the risks of fertility loss before cancer treatment. Ms. Lacks signed a consent form for cancer treatment. During this time, the accepted treatment consisted of putting strips of lead inside the vagina to protect the colon and lower spine from radiation. Ms. Lacks' doctors failed to apprise her of the risks of infertility before the cancer treatment, in direct violation of the hospital's practice. Ms. Lacks' medical record indicates that if she had been told [of the risks] before, she would not have gone through with treatment. It appears that Ms. Lacks' denial of identity as a woman worthy of being warned of the potential inability to reproduce was overshadowed by her intersecting identity as a poor Southern tobacco farmer who worked the same land as her [enslaved] ancestors in the body of a 31 year-old wife, mother of five gaining free public health care.

As Skloot contends, [m]any scientists believed that since patients were treated for free in the public wards, it was fair to use them as research subjects as a form of payment. Another notion of fairness will be addressed in terms of unjust enrichment as to Ms. Lacks and her descendants. The nonconsensual transfer of tissue cells for research purposes and/or substantial profit did not end with Ms. Lacks. It is well documented that medical representatives continued to take blood and tissue cell samples from her surviving family members without informed consent. I submit that Ms. Lacks' descendants have a viable claim for unjust enrichment under Restatement (Third) of Restitution and Unjust Enrichment.

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