Genes and Spleens: Property,Contract,or Privacy Rights in the Human Body?

See Rao R. , “Property, Privacy, and the Human Body,” Boston University Law Review 80, no. 2 (2000): 359–460, at 359 (contrasting property and privacy rights in the human body).

For example, the National Academy of Sciences Guidelines and California law prohibits compensation of those who supply eggs for human embryonic stem cell research, yet they permit patents to be granted upon the products of such research. See Rao R. , “Coercion, Commercialization, and Commodification: The Ethics of Compensation for Egg Donors in Stem Cell Research,” Berkeley Technology Law Journal 21, no. 3 (2006): 1055–1066, at 1055.

Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990).

Indeed, the same scientists who contested Moore's property claim apparently viewed themselves as the owners of his spleen, heedless of the irony inherent in their position. In a parallel case that was subsequently settled out of court, these scientists brought suit against several other researchers who used the spleen cells without obtaining their consent. Id., at 497.

Justice Broussard's argument was as follows: “Although the majority opinion…appears to suggest that a removed body part, by its nature, may never constitute ‘property’ for purposes of a conversion action, there is no reason to think that the majority opinion actually intends to embrace such a broad or dubious proposition. If, for example, another medical center or drug company had stolen all of the cells in question from the UCLA Medical Center laboratory and had used them for its own benefit, there would be no question but that a cause of action for conversion would properly lie against the thief, and the majority opinion does not suggest otherwise.” Id., at 501.

Greenberg v. Miami Children's Hospital, 264 F. Supp. 2d 1064 (S.D. Fla. 2003) [hereinafter cited as Greenberg].

Washington University v. Catalona, 437 F. Supp. 2d 985 (E.D. Missouri 2006).

See Greenberg, supra note 7, at 1066; see also Kolata G. , “A Special Report: Who Owns Your Genes?” New York Times, May 15, 2000, at A1.

Id.; see also Gorner P. , “Parents Suing over Patenting of Genetic Test,” Chicago Tribune, November 19, 2000, at 1.

See Greenberg , supra note 7, at 1066; see also id.

See Kolata , supra note 9; Greenberg , supra note 7; Marshall E. , “Families Sue Hospital, Scientist for Control of Canavan Gene,” Science 290, no. 5494 (November 10, 2000): 1062. “Matalon acknowledges that the Canavan parents helped him to get started by contributing tissue and ‘seed money’ amounting to no more than $100,000.”

See Gorner , supra note 10.

See Complaint at 7, Greenberg v. Miami Children's Hospital, 264 F. Supp. 2d 1064 (S.D. Fla.2003) (No. 00C-6779).

Id., at 8.

See Greenberg , supra note 7, at 1067.

See Amended Complaint at 11, Greenberg v. Miami Children's Hospital, 264 F. Supp. 2d 1064 (S.D. Fla.2003) (No. 02–22244); Greenberg, supra note 7, at 1067.

See Amended Complaint at 11–12, Greenberg v. Miami Children's Hospital, 264 F. Supp. 2d 1064 (S.D. Fla.2003) (No. 02–22244).

See Greenberg , supra note 7, at 1068.

Amended Complaint at 11, Greenberg v. Miami Children's Hospital, 264 F. Supp. 2d 1064 (S.D. Fla.2003) (No. 02–22244). ‘Although Defendants had applied for a patent in 1993, they did not disclose it in the 1994 informed consent form under which they collected blood and undertook genetic analyses of David Green's family, Daniel Greenberg's family, and thousands of individual members of Dor Yeshorim.’24. Id., at 7.

See Kolata , supra note 9.

See Merz J. F. , “Discoveries: Are There Limits on What May Be Patented?” in Magnus David , eds., Who Owns Life? (Amherst, NY: Prometheus Books, 2002): at 99.

See Greenberg, supra note 7, at 1068.

Id., at 1077.

Id., at 1070.

Id., at 1070–71.

Id., at 1072.

Id., at 1074.

Id., at 1075.

Canavan in the News , Press Release, September 29, 2003, available at <http://www.canavanfoundation.org/news/09–03_miami.php> (last visited May 23, 2007).

See Washington University, supra note 8.

Id., at 987–88.

Id., at 989.

Id., at 994.

Id., at 990.

Id., at 994.

Id., at 1002.

Id., at 995.

Id., at 989.

Id., at 997–99.

Id., at 997.

Id., at 999.

Id, at 999–1000.

Fleischer M. , “Patent Thyself,” The American Lawyer, June 21, 2001, at 84–100.

Solovitch S. , “The Citizen Scientists,” Wired, September 1, 2001, at 144–151; see Fleischer , supra note 54.

Id. (Fleischer).

Chadwick R. , “The Icelandic Database: Do Modern Times Need Modern Sagas?” British Medical Journal 319, no. 7207 (August 14, 1999): 441–444, at 441.

Id. See also Jonatansson H. , “Iceland's Health Sector Database: A Significant Head Start in the Search for the Biological Grail or an Irreversible Error?” American Journal of Law and Medicine 26, no. 1 (2000): 31–68, at 31.

Williams Walsh M. , “A Big Fish in a Small Gene Pool,” Los Angeles Times, June 5, 1998, at A1.

See Jonatansson , supra note 66; Lok C. , “Translating Iceland's Genes into Medicine,” Technology Review 107, no. 7 (September 1, 2004): 58–65; Duncan D. E. , “Tracking Genes in Iceland Sifting Viking Records Yields a Marker for Stroke,” San Francisco Chronicle, October 19, 2003, at 1.

See Bill on a Health Sector Database , Notes to the Bill, Section 2, available at <http://www.mannvernd.is/english/laws/HSD.ill.html> (last visited June 21, 2007).

Id. See also Enserink M. , “Iceland OKs Private Health Databank,” Science 283, no. 5398 (January 1, 1999): 13.

See Bill on a Health Sector Database, supra note 69, at Article 5, Section 8.

Id., at Article 10.

See Enserink M. , “Physicians Wary of Scheme to Pool Icelanders' Genetic Data; Database of Health Records Would Be Granted to Private Company for Analysis,” Science 281, no. 5379 (August 14, 1998): 890–891, at 890.

See Bill on a Health Sector Database, supra note 69, at Article 5, Section 1.

See McKie R. , “Iceland's Gene Pool Holds the Key to Curing Diseases,” The Observer, November 9, 1997, at 15.

See Lyall S. , “A Country Unveils Its Gene Pool and Debate Flares,” New York Times, February 16, 1999, at F1.

See Bill on a Health Sector Database, supra note 69, at Notes to the Bill, Principle Features of the Bill, Section 3.

Id., at Article 8; see also Jonatansson , supra note 66, at 47–48.

Abbott A. , “Icelandic Database Shelved as Court Judges Privacy in Peril,” Nature 429, no. 6988 (May 13, 2004): 118.

See Lyall , supra note 79; see also Annas G. , “Rules for Research on Human Genetic Variation - Lessons from Iceland,” New England Journal of Medicine 342, no. 24 (June 15, 2000): 1830–1833, at 1830; see also Sigurdsson S. , “Decoding Broken Promises,” Open Democracy, June 3, 2003, available at <http://www.opendemocracy.net/debates/article-9-79-1024.jsp> (last visited May 10, 2007).

Gulcher J. Stefansson K. , “The Icelandic Healthcare Database and Informed Consent,” New England Journal of Medicine 342, no. 24 (June 15, 2000): 1827–1830, at 1827.

See Lyall , supra note 79.

See Abbott , supra note 82.

Ragnhildur Gudmundsdottir v. Iceland , Icelandic Supreme Court, No. 1512003, available at <http://www.epic.org/privacy/genetic/iceland_decision.pdf> (last visited May 10, 2007).

See Abbott , supra note 82; see also Annas G. , “Family Privacy and Death – Antigone, War, and Medical Research,” New England Journal of Medicine 352, no. 5 (February 3, 2005): 501–505, at 501.

See Abbott , supra note 82; Gudmundsdottir, supra note 88.

See Annas , supra, note 89; id. (Gudmundsdottir).

See, e.g., Elliff v. Texon Drilling Co., 210 S.W.2d 558, 561–62 (Tex. 1948) (applying the law of capture to oil and gas); Houston & T.C. Ry. Co. v. East, 81 S.W. 279, 280–82 (Tex. 1904) (applying the law of capture to groundwater); Pierson v. Post, 2 Am. Dec. 264, 264–67 (N.Y. 1805) (holding that wild animals become the property of the first person who captures them or brings them under certain control); see also Rao , supra note 1, at 359, 373–75, 454–456.

See Moore , supra note 3, at 501.

Vidal J. Carvel J. , “Lambs to the Gene Market,” The Guardian (London), November 12, 1994, at 25.

See Bill on a Health Sector Database, supra note 69, at Notes to the Bill, Section 2.

Iceland's approach resembles U.S. jurisprudence governing dead bodies. For example, many American states authorize the taking of body parts from dead bodies without obtaining consent from the decedent or his or her family. These laws effectively treat dead bodies as a communal resource that may be confiscated by the state for the benefit of the living. See Rao , supra note 1, at 371, 380–381, 450–451.

See Rao , supra note 2.

See Greenberg, supra note 7, at 1075 (stating that “the property right in blood and tissue samples evaporates once the sample is voluntarily given to a third party”).

Id., at 174.

United States v. Arora, 860 F. Supp. 1091 (D. Md. 1994).

Id., at 1099.

As Jon Merz, a biothethicist at the University of Pennsylvania, said, “There were basically three ingredients that went into the Canavan research. More than 160 families participated in giving DNA samples, urine and blood samples that led to the discovery of the gene. So a key point was the direct participation of people most directly influenced by the disease. Another key point was the number of researchers who had the capability to go ahead and do the research. The Matalon group had no special skills. In fact, they had applied for funding from the National Institutes of Health and they didn't get it because they had no track record in gene research. The third ingredient was money. Miami Children's Hospital obviously threw money at Matalon to do Canavan research. But that's not unique either. A lot of people will fund research. So it turns out the money and research skills were totally replaceable. The only thing that was absolutely required in order to make the discovery was the participation of these families.” See Gorner , supra note 10.

See Radin M. J. , “Property and Personhood,” Stanford Law Review 34, no. 5 (1982): 957–1015, at 957.

See Merz , supra note 26; Merz J. F. , “Discoveries: Are There Limits on What May Be Patented?” in Magnus D. Caplan A. McGee G. , eds., Who Owns Life? (Amherst, New York: Prometheus Books, 2002): at 99.

See Greenberg , supra note 7, at 1075.

See Merrill T. W. Smith H. E. , “The Property/Contract Interface,” Columbia Law Review 101, no. 4 (2001): 773–852, at 773, 776–777 (noting that contract rights are in personam - “they bind only the parties to the contract,” whereas property rights are “in rem - they bind ‘the rest of the world.’”)

See Fleischer , supra note 54.

Altann H. , “UH Discovery May Cut Heart Disease,” Honolulu Star-Bulletin, June 2, 2000.

See Chadwick , supra note 65.

See Walsh , supra note 67.

See Rao , supra note 1, at 418–428.

Id., at 428.

See Rao , supra note 1.

Id., at 445.

Id., at 459.

Ragnhildur Gudmundsdottir v. Iceland , Icelandic Supreme Court, No. 1512003, available at <http://www.epic.org/privacy/genetic/iceland_decision.pdf> (last visited May 21, 2007).

See Rao , supra note 1, at 439–442.

See Kolata , supra note 9.

See Greenberg, supra note 7, at 1072.

See Rao , supra note 1, at 367–368.

See Winickoff D. Winickoff R. , “The Charitable Trust as a Model for Genomic Biobanks,” New England Journal of Medicine 349, no. 12 (2003): 1180–1184.