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Dominique Cain

Krusen

Biomedical Sciences

November 29, 2012

Legal Disputes Over Tissue Samples

The study of the human body and its tissues has fascinated people for decades, and has

even started many innovations that are known in today’s medical society. These studies can be

traced back at least as far as the Sumerian population, from around 4000 BC. Unfortunately,

after the collapse of the Roman Empire, anatomical studies came to a halt, and research was at an

standstill. For many years researchers were arrested or tortured for even getting near a dead

body. It wasn’t until the fifteenth century that researchers at a European medical school could

study human tissue sample without being prosecuted. Though human studies have come a long

way and tissue samples have become critical to further research in labs, using tissue samples

from human bodies today is meeting the critical eye from the past.

Since the federal government monitors the use of human tissues, the question of who

owns the human tissue samples once they have been analyzed under state property law is what

many legislators are asking themselves. In many situations courts have considered the question

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of whether an individual retains an ownership interest in their tissue samples after the samples

have been commercialized into research results and if they get to share any profits that are gained

out of it. A big problem that the courts look at is the difference between “guardianship” and

“ownership” and how these two words could affect the tissue sampling is handled

(whoownsyourbody). Hence, because guardianship describes a legal relationship in which

physical possession of personal property is transferred from one person to another person, this

meaning whoever is under “guardianship” of the tissue sample has the right to reclaim their

possession at any time. However, “guardianship” is distinguished from a sale or a gift of

property, because having guardianship of something usually involves the transfer of possession,

not ownership. This means that the “ownership” of property gives the property owners the right

to use, sell, transfer, exchange, or destroy their property as they wish, and to exclude others from

doing these things. Therefore, when courts choose if people have the right to retain some

possession of their tissue samples, they must take to mind if tissue samples are delicate children

being pasted between the guardianship of their parents or if the life line of the tissue samples are

amount to nothing but property.

However, in most circumstances involving the use of tissue samples for clinical purposes

and tissue that has been donated for biomedical research, courts have concluded that the original

‘owner’, ‘patient’, and other research study participants do not retain ownership rights of the

sample tissue. This means that the owner cannot destroy or exchange their tissue with anyone

else. However, this could also cause a problem where the patient doesn’t get any profit from

donating their tissue samples (whoownsyourbody). On contrary rulings have been reached in

cases in which the evidence showed that there was a clear understanding that the patient would

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retain ownership of the sample tissue. Take for example the case on Moore v. Regents of the

University of California, which was decided by the Supreme Court of California in 1990. In

1976, Moore underwent an operation at the University of California to treat his hairy cell

leukemia. Between the years of 1976 and 1983, Moore traveled to the University of California

several times believing that he was required for ongoing treatment. Shortly afterwards Moore

learned that the university was conducting a research on material obtained during his treatment

and had created a cell-line using that material and that the University of California was using his

cell-line for commercial gain and was also getting profits out of it. Moore asserted a variety of

claims, including conversion and “lack of informed consent”(lawnix). In his conversion claim,

Moore contended that he had an “ownership interest in his cells, and the University of California

took them unlawfully” (lawnix). The court dismissed the conversion claim, holding that current

state law did not support a conversion claim and creating such a claim would unreasonably

burden medical research, in which this may cause others to rebel against other medical offices.

The court did, however, find that Moore could proceed on his claim that the doctors had

breached their fiduciary duty to obtain informed consent because they failed to inform Moore

about their research findings, and they also failed to tell him about the economic benefit

associated with the additional procedures they performed on him (kentlaw.edu). The court drew a

distinction between the privacy and dignity interests protected by the informed consent doctrines

and property rights. However, the problem with this case is that the court didn’t protect the right

that Moore should have been informed before this problem occurred by the University that his

cells were being used for this type of research. Though the university might have been afraid

that Moore wouldn't have wanted this research to go public, many outside sources are highly

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sure that he would have let the research go on if it was for the better good rather than the

university trying to hide the fact that they were doing this (karlesen,faria,solbakk).

Though the research of tissue samples as further medical history and created an outlet

that as made treating people for diseases easier. The aftermath use of tissue samples is what is

killing us. Though most university's or medical research places that start out for the greater good

have fallen in the usual court case scenario of being "unfaithful" to their clients and patients.

They say money is a powerful thing and can lead to all sorts of corruption. The more money one

has, the greater tendency one has to acquire for power and authority, which may result in a

pursuit for personal gains. That is exactly what the University of California did; they looked for

the personal gain rather than helping Moore.

WORKS CITED

Moore v. Regents of the University of California â“ Case Brief Summary. (n.d.). Lawnix Free

Case Briefs RSS. Retrieved November 30, 2012, from

http://www.lawnix.com/cases/moore-regents-california.html

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Moore v. Board of Regents. (1990, July 9). Moore v. Board of Regents. Retrieved November 30,

2012, from http://www.kentlaw.edu/perritt/courses/property/moore-v-regents-

excerpts2.htm

Federal Regulation of Tissue Research. (n.d.). Human Specimens for Research. Retrieved

November 30, 2012, from

http://www.cancerdiagnosis.nci.nih.gov/humanSpecimens/survey/federalRegulation.htm

Who Owns Your Body | Tissue Disputes. (n.d.). Who Owns Your Body | Tissue Disputes.

Retrieved November 30, 2012, from

http://www.whoownsyourbody.org/tissuedisputes.html

Karlsen, JR., Faria, PL, & Solbakk, JL. (2006, April). NCBI. Retrieved November 30, 2012,

from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC25