PROPERTY RIGHTS IN HUMAN TISSUE — CALLING “A SPADE, A SPADE”

• Citation: (2003) 15 SAcLJ 61
• Author: TAN BOON HENG
• Date: 01 December 2003
• Published date: 01 December 2003

Introduction

1 The recent unprecedented developments in the biomedical sciences have raised numerous legal, policy and ethical questions. Some of which have no easy answers. The issue of whether there is property in human tissue is one such thorny question. This issue has become very important for two reasons: firstly, “spare-part” medicine is now more extensively practised than ever before; and secondly, the demand for human tissue to serve as raw material for scientific research into the life sciences has risen dramatically.

2 The fear is that there will be claimants whose rights may have been infringed when their body tissue was removed from them without their consent for an unauthorised use. As the biotechnology industry is a new money-spinner, such claimants may sue, inter alia, in conversion for a share of the profits from those who have benefited from the unauthorised use of their tissue. In such cases, the result turns on whether the law recognises property rights in human tissue. Interestingly, in analysing this issue, some have traced back to the 16th and 17th Century common law cases in England holding that there can never be property in human corpses. Beyond the traditional common law view, this article discusses a number of the relevant decisions from the leading jurisdictions, paying particular emphasis to a decision from the Supreme Court of California, Moore v The Regents of the University of California (1990) and completing the legal journey with some of the contemporary U.S. decisions that accept property in human tissue. Having visited the cases, this article will then draw on the respective judges’ reasoning used in Moore’s case and other cases to critically analyse and conclude that finding property in human tissue actually comports with the legal, policy and ethical considerations in the context of today’s world of life sciences. Finally, the article also attempts to justify why the courts of law should make such a decision, rather than leave it to the Legislature. It is argued that as the issue is a question within the purview of the common law, the courts and not the Legislature should deal with it.

3 The Singapore Bioethics Advisory Committee in making the recommendations on “Human Tissue Research” in November 2002 specifically reserved this issue for a public dialogue in the hope of

achieving an early resolution of the legal and ethical questions in relation to the ownership, custody and property rights to human tissue. It is hoped that this article will contribute as a piece of useful literature to serve the needs of the ongoing public dialogue in Singapore as they mull over whether there is property in human tissue. This article submits that there is, and the law must call “a spade, a spade”.

Part 1 The Biology Century

4 Astute observers have predicted that the 21st century will be the biology century. The practical and economic applications of biology are mapped for dramatically phenomenal growth. Health related biotechnology is already a multi-billion dollar success story.1 Not surprisingly, Singapore has been aggressively building up the biomedical research sector as the next money-spinner.2 To encourage and stimulate the establishment of life science research ventures in Singapore, the Singapore Government established the International Advisory Council3 (“the council”). The council endorsed many of Singapore’s plans4 to develop Singapore as a hub in this field, in particular, the council felt that an advisory committee5 on bioethical issues would be absolutely essential. In December 2000, the Bioethics Advisory Committee (“the BAC”) was

appointed by the Cabinet to examine the potential legal, social and ethical issues arising from research in the biomedical sciences in Singapore, and to recommend policies to the Life Sciences Ministerial Committee with the aim of protecting the rights and welfare of individuals, while allowing the development of the biomedical sciences for the benefit of mankind.6

5 To-date, the BAC has released two reports.7 Its first report, “Ethical, Legal and Social Issues in Human Stem Cell Research, Reproductive Cloning and Therapeutic Cloning” (“the Stem Cell Report”) was released in June 2002.8 The BAC’s second report, “Human Tissue Research”9 (“the report”) dated November 2002, deals with matters affecting the conduct and governance10 of human tissue research and human tissue banking in Singapore,11 in particular, Research Tissue Banking.12 Human tissue is being used in an increasing variety of new ways. Many of these developments, such as advances in transplantation therapy, have unquestionable benefits; but using human tissue in different ways also raises questions of law and presents new ethical dilemmas.13 In this regard, the BAC’s second report is timely.14 Interestingly, the BAC recommended,15inter alia, for a continuing professional and public dialogue to achieve an early resolution of the legal and ethical questions in relation to the ownership, custody and property rights to donated human tissue. As far as the latter is concerned, the BAC noted that there is still a lack of international consensus and an absence of clear law both in Singapore and elsewhere. The aim of the dialogue is towards ensuring the

harmonisation of Singapore’s laws with those of the leading jurisdictions around the world.

The intent of this article

6 In view that the BAC has identified legal and ethical questions in relation to the ownership, custody and property rights to donated human tissue as outstanding areas for an early resolution to be achieved, this article makes an attempt to discuss that aspect of it. It is hoped that the article will serve as a piece of useful literature to contribute to the continuing dialogue that the BAC is initiating. The BAC recognises that a full consensus has yet to emerge on many of the most critical issues in relation to human tissue banking and the most difficult problem relates to the question of whether there is property in human tissue.16

7 One author17 interestingly describes that we live in an age of staggering scientific advances. Among other outstanding achievements, it is an era of “spare-part” medicine - human tissue is transplanted from one person to another, blood is transfused and ova are fertilised in vitro. This is moreso today with the aggressive global mining of the development of the biomedical sciences. As extensive collaborative research projects tend to transcend national boundaries, participating countries may require proof of each other that there is a rough equivalence in the degree of ethical and legal protection before they will allow the cross-frontier transfer of research data, or allow cross-border research collaboration that involves access to their national tissue collections.18 Hence, the harmonisation of laws and rules in this field is likely to emerge as a critical consideration in shaping the laws and rules in the involved jurisdictions.19 The BAC also correctly acknowledges that Singapore’s failure to shape its laws, rules and protocols in accordance with those of the leading jurisdictions may well mean that Singapore researchers may be excluded from opportunities for collaboration with researchers in those jurisdictions.20

8 To start, we need to consider this area of the law carefully and determine the legal position that Singapore is adopting. As the BAC’s

ultimate aim is to formulate a view that is in sync with the views accepted by the leading jurisdictions, when analysing Singapore’s legal and ethical position on the issue of property in human tissue, effort is taken in this article to highlight the positions adopted by leading jurisdictions including the United States (U.S.), United Kingdom (U.K.), Australia and Canada. Particular reference will be made to the common law, though where helpful, relevant legislation from the named jurisdictions and the respective national research reports (where available) will be mentioned. The debate on whether the law should recognise property in human tissue is far from settled judging from the judicial opinions and national research reports on the subject. In this regard, this article takes a bold approach to state what it feels, as a case of first impression, should be considered as the law in Singapore. With a definitive legal position taken by Singapore on the issue one way or another, Singapore is actually contributing to the decision making process among the leading jurisdictions in this area of the law and research.

Part II A Survey on Authorities on Property Rights in the Human Body and Human Tissue

9 The concepts of property and ownership are extremely broad. The term “property” has been defined as the right to possess, use and enjoy a determinate thing (either a tract of land or a chattel). It is the right of ownership and in its widest sense, property includes all of a person’s legal rights, of whatever description.21 The California Supreme Court in one of its leading decisions22 defined “property” to include “every species of estate, real, and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value”. The concept of property is often said to refer to a “bundle of rights” that may be exercised with respect to that object — principally the rights to possess the property, to exclude others from the property, and to dispose of the property by sale or gift.23

What is human tissue?

10 The basic unit of every living organism is the cell. Cells contain organelles. These are specialised structures that perform different functions in the cell. In higher life forms, such as humans, cells are

specialised to perform different functions. Strictly speaking, a tissue is a collection of similar cells that are specialised to perform a particular function; examples are...