Wesley Chang , Arrested Development: Patent Laws, Embryonic Stem Cell Research, and
the Organ Black Market, 10 Sw. J.L. & Trade Am. 407 (2004)
One of the first cases to consider property interest in the human body was York v. Jones where the parties disputed over reproductive material. [FN44] The case involved a contract dispute between the defendant, an in vitro fertilization ('IVF') clinic in Virginia, and the plaintiff, a couple who stored their cryogenically preserved zygote in the IVF clinic. [FN45] When the couple wanted to transfer their zygote to a California clinic, the IVF clinic refused to return it. [FN46] The court evaluated the parties' rights to the zygote under their 'Cryopreservation Agreement' and found that the plaintiff, in fact, had 'property rights in the pre-zygote' under the contract. [FN47]
Around the same time that the York v. Jones case was decided, the California Court of Appeal decided Moore v. Regents of the University of California. In Moore, the Court of Appeal determined that the plaintiff had a valid conversion claim to his excised spleen, blood, sperm, bone marrow, and skin cells against the University of California when the Medical Center used Moore's unique cells to develop a lucrative cell line without his knowledge or permission. [FN48] The Court of Appeal, in line with rulings from other jurisdictions, held that Moore had a property interest in his excised tissue. [FN49]
However, the California Supreme Court later reversed the Court of Appeal's decision, holding that Moore essentially abandoned his claim to his spleen after it was removed. [FN50] Even though the majority in the California Supreme Court expressed its opinion that, based on public policy considerations, a person should not be able sell any part of his body for a profit, it did not expressly reject the possibility that a person could have property rights in his organs. [FN51] Rather, the court merely cited the UAGA of 1987 as support for its decision and deferred to the legislature to create future guidelines regarding sales of particular body parts. [FN52]
Moore, however, appears to be the exception to the general trend exhibited by courts in other jurisdictions that have 'explicitly or implicitly recognized some property rights in human tissues.' [FN53] In 1992, Judge Cowen of the Third Circuit Court of Appeals stated, 'human remains can have significant commercial value, even though they are not typically bought and sold like other goods. Although remains which are used for these medical and scientific purposes are usually donated, rather than bought and sold, this does not negate their potential commercial value.' [FN54] Furthermore, the court in Davis v. Davis, facing a similar issue as in York v. Jones, held that progenitor's ownership interest in frozen pre-embryos was valid under a prior agreement. [FN55] Even though the Davis court did not consider the embryo as 'property,' it recognized the embryo as an 'interim category,' holding a status somewhere 'between persons and property.' [FN56]
One year later, the California Court of Appeal had an opportunity to confront the issue of whether a person's tissue or cell could be considered property within the scope of the California Probate Code. In Hecht v. Superior Court, [FN57] the deceased left his frozen sperm to his girlfriend in accordance to his will, hoping that she would bear his children after he had died. [FN58] Even though the Hecht court tried to comply with Moore's ruling, it could not resolve the issue under the California Health and Safety Code. [FN59] Instead, the court relied on the definition of 'property' as set forth in the Probate Code and held that the deceased person's frozen sperm satisfied those 'property' requirements. [FN60] Finally, in United States v. Arora, the District Court for the District of Maryland applied the tort of conversion to the misappropriation of human tissue lines. [FN61] The District Court settled the question that was unanswered in Moore and 'explicitly recognized the cell lines as property.' [FN62]
[FN44]. See id. at 121 (citing York v. Jones, 717 F. Supp. 421, 422 (E.D. Va. 1989)).
[FN45]. See York v. Jones, 717 F. Supp. 422.
[FN47]. Id. at 425-27.
[FN49]. See id. Justice Rothman observed, 'Until recently, the physical human body, as distinguished from the mental and spiritual, was believed to have little value, other than as a source of labor. In recent history, we have seen the human body assume astonishing aspects of value... For better or worse, we have irretrievably entered an age that requires examination of our understanding of the legal rights and relationships in the human body and the human cell,' see Remigius N. Nwabueze, Biotechnology and the New Property Regime in Human Bodies and Body Parts, 24 LOY. L.A. INT'L & COMP. L. REV. 19, n. 11 (2002) (citing Moore v. Regents of the Univ. of Cal. 249 Cal. Rptr. 494, 504 (Ct. App. 1988)).
[FN50]. See Moore v. Regents of the University of California (1990), 793 P.2d 479, 487-93, cert. denied, 499 U.S. 936 (1991) (stating that '[s]ince Moore clearly did not expect to retain possession of his cells following their removal, to sue for their conversion he must have retained an ownership interest in them. But there are several reasons to doubt that he did retain any such interest.').
[FN52]. See generally id.; see also Moore v. Regents of University of California 249 Cal.Rptr. 494, 504(Cal.App. 2 Dist., 1988) (stating, 'There is, however, a dramatic difference between having property rights in one's body and being the property of another... We are not called to determine whether use of human tissue or body parts ought to be 'gift based' or subject to 'free market.' These rights and interest are so akin to property interest that it would be a subterfuge to call them anything else.'). The Court of Appeal was also careful to distinguish between ownership of one's own body and ownership over another person, declaring, 'We have approached this issue with caution. The evolution of civilization from slavery to freedom, from regarding people as chattels to recognition of the individual dignity of each person, necessitates prudence in attributing the qualities of property to human tissue.' Id. Even though the California Supreme Court did not make a decision based on the determination of property rights in the human body, the court's concern over the morality of such an endeavor was evident. Justice Arabian, in his concurring opinion, expressed his concern, stating, 'Plaintiff has asked us to recognize and enforce a right to sell one's own body tissue for profit. He entreats us to regard the human vessel - the single most venerated and protected subject matter in any civilized society - as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much... The ramifications of recognizing and enforcing a property interest in body tissues are not known, but are greatly feared - the effect on human dignity of a marketplace in human body parts.' Id. at 497 (emphasis original).
[FN54]. See Nwabueze, supra note 49, at 20 (citing Onyeanusi v. Pan Am, 952 F.2d 788, 792 (3d. Cir. 1992).
[FN56]. See Markett, supra note 53, at 221.
[FN59]. Id. at 846.
[FN60]. Id.; see also Cal. Probate Code § 62 (Deering 1991) (defining property as 'anything that may be the subject of ownership and includes both real and personal property and any interest therein.').
[FN62]. See Markett, supra note 53, at 220.