In conclusion, Ms. Lacks entered the free, colored ward of Johns Hopkins as a patient and unknowingly became a research subject, yielding the first immortal cell line - and also a valuable product line - to medical science and society alike. Johns Hopkins failed to adhere to its own standard practice of informing its female patients of the attendant risks of infertility prior to obtaining a signed consent form for cancer treatment from Ms. Lacks. To date, her descendants have not benefited from a fair apportionment of the subsequent profits gained, resulting in a viable claim for unjust enrichment under Restatement (Third) of Restitution and Unjust Enrichment.
The Lacks matter provides an opportunity to strike an equitable balance between the medical community's need for biotechnology research and the financial needs of the patient community and society as a whole. I offer a new way to think about an approach to bioethics, torts, and race. Scientists and researchers not only gained massive profits and valuable medical knowledge from HeLa cells without granting any financial benefit to Ms. Lacks' descendants, but continued to take blood from the surviving family members without their informed consent in order to further study the HeLa cells. Societal constructions of race, gender, and class defined Ms. Lacks' body and marginalized her existence while profiting from the cells her body produced. The fact that Ms. Lacks' descendants have not received any compensation under current legal regimes for the taking of and profiting from HeLa cells raises bioethical concerns regarding cell ownership. The Restatement is a viable means to address the notion that the non-consensual transfer of Henrietta's cells amounts to an interference with her protected interest for which restitution is due. The Restatement not only provides a potential remedy for the descendants of Henrietta Lacks, but further elaborates on the illustration recognizing restitution for interference with other protected interests, such as cells in the human body.
. Deleso A. Alford J.D., LL.M. Associate Professor of Law, Florida A&M University College of Law; J.D., Southern University Law Center; LL.M, Georgetown University Law Center.
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