Here’s a scenario: you undergo treatment for a serious disease. The doctor takes samples of your blood, bone marrow, and other bodily fluids as well as recommending that one of your organs be removed to improve your prognosis. Upon further examination of the removed organ, the doctor observes that your organ produced a protein that stimulates the growth of white blood cells, thus improving your body’s protection against infection. You later learn that the doctor developed your cells into a commercial cell line, thus profiting the doctor without any notice or compensation for you. Do you have a right to financial compensation for the doctor’s use of your cells?
For those that remember the holding of Moore v. Regents of the University of California, the answer is “no,” once our cells leave our body, they are no longer our property. This is but one example of situations involving human tissue that just seem intrinsically unremedied – we have a property interest in our cells while they are in and a part of our body but lose that interest when they are outside of it? This situation also begs the question, what should the remedy be for the nonconsensual appropriation of human body parts and tissue?
Body Parts: property, a product, or a service?
Currently, an individual does not have a property interest in discarded cells and tissue and there is a legal uncertainty, as well as an academic disagreement as to what the legal status of biological material—once separated from the person—should be. Furthermore, this entire issue is exacerbated by the significant lack of supply of organs. Some believe that discarded body tissue should be redefined as property. Common law established and modern tort law is founded upon the premise that we have a right against nonconsensual physical contact. However, the common law says very little about our rights to dispose of or profit from our bodies. If body tissue was characterized as a property interest, a legally recognized ownership right could be made, thus aiding in the redress for nonconsensual appropriation.
It has been suggested that the categorization of tissue as property could help influence the outcome of cases such as whether tissue used for donation are products, whether universities have a property claim or proprietary interest in research subjects’ DNA, and the constitutionality of organ conscription laws. However, viewing the body as property does seem to violate the view that our body is a sacred and inalienable object, as well as being reminiscent of America’s dark past.
If body parts were characterized as goods, it creates a financial incentive by putting a monetary value on the parts or tissue. This would have interesting ramifications. On one hand, there is a belief in the sanctity of the human body and a very real consequence when humans step into the position of God. If the human body is merely viewed as a commodity—an object of financial worth—then this poses some potential adverse consequences in itself.
As in life insurance, an individual has to have an insurable interest—a reason to promulgate the continuance of said individual—in the insured individual’s life. Without this interest, an individual could take out a policy on an individual just to cash in on it by ensuring that individual experiences an early demise. It essentially creates a target on the insured individual, so much so that insurance agents have a lawful duty in not issuing insurance policies on the life of an individual that the policy seeker does not have a reason to see continued. In this same line of thought, putting a price on a body part as a commodity creates an incentive for individuals to illegally obtain and sell body parts. The human mind has shown to be very creative when walking the line of morality and financial profit.
That being said, a realist may understand that despite this moral ambiguity, humans will and are currently engaging in this behavior regardless of what society deems ethical. Just because something is deemed “illegal,” it does not mysteriously, deus ex machina style, eradicate the demand for the commodity. This is evident with the drug trade, back-room abortions, and international human trafficking. When governments do not step in to create regulations because of moral ambiguities, the market will fill that gap by creating a dangerous and unregulated industry where anything goes – the modern wild, wild west, so to speak. A price can be put on anything that has a demand.
What is the price of human life?
This leads to another potential issue regarding human worth that scholars like Goodwin bring up: “. . . we may not like discussing the human body in market-like terms, with values and assessments. However, market realities in the body already exist.” If body parts are given value, then doesn’t that literally put a price on human life? Could certain organs of some individuals be more sought after than organs of other individuals, thus creating a price disparity between certain races, ethnicities, creeds, etc.? Would the overall intrinsic value of human life be diminished by the monetary value of its individual parts? The failure to address these issues has led to the promulgation of just that issue, regardless of whether society is ready to confront it.
Some courts have ruled that tissue sold in the transplantation context were not products or goods, but rather services. The purpose of this categorization is to provide a remedy under a breach of warranty theory. These rulings ostensibly permit the status of body parts to change from one party to the next, i.e., a good to some and a service to others. These holdings also leave purchasers of these organs without any cause of action and tissue banks free from liability. Some may completely disagree with the characterization of human body parts as “services” rather than “goods,” and they would have a fair argument. For example, a dentist does not sell dentures as a “good” to his patients. He purchases the dentures as a “good” from a manufacturer of dentures. The dentist is providing a service, i.e., the installation of said goods. In the same way, a surgeon is not selling a “good” to a patient; the surgeon’s service is the installation of the “good” that the hospital purchased from a wholesaler.
Our Body, a Bailment?
Some argue that the body simply exists for the purpose of carrying our souls and if violated, the cause of action is not one that could be adjudicated in Man’s court of law. This is often the reason that there is hesitation in placing property rights on our bodies. The idea is based on a Judeo-Christian premise viewing the human body as a sort of bailment: a transfer of physical possession of the human “property” for a time, but the retainment of ownership remains with God. Under this view, it is our duty as the bailee to take proper care of our entrusted property while we are fortunate enough to have it; and like most good things, it is our duty to return it to our Maker upon the end of our journey. After all, if a surgeon had the tool and skill to dissect every single molecule and individual atom from the human body, would he separate it entirely without finding the soul? A possible presupposition is that maybe the soul is not material. Although interesting, it would surely be a Constitutional violation to legislate based on this premise and one which offers no real solution to the issue.
Are we missing something?
If one were to play Devil’s Advocate against scholars like Goodwin, maybe there is something that is potentially overlooked. Body commodification scholars seemingly presuppose that the only way to get human organs is through the harvesting of live or dead hosts. However, as technology continues to exponentially advance, the ability to grow organs in a laboratory setting has become a reality. The moral ambiguity that shrouds organ harvesting and commodification becomes increasingly irrelevant as we move towards being able to develop artificial organs. Though I’m not sure if these faux organs require human DNA or tissue to create, it is surely less taxing than the physical harvesting of fully developed human organs from living or cadaver specimens.
How we define the legal status of human body parts determines the available remedies when these rights are infringed. If we continue to debate the ethical ramifications while the issue continues, we risk exploiting individuals in the process. However, it could be that the solution does not lie in how we define the legal status of the parts and tissue, but maybe it lies in preventing doctors and researchers from exploiting unaware patients through more protective and transparent informed consent standards. No matter the answer, the law must be flexible to adapt to new dilemmas presented by the advancement of technology.