russell korobkin, "property rights and the control of human tissue samples"

Property Rights and the Control of

Human Tissue Samples

Russell Korobkin

Richard C. Maxwell Professor UCLA School of Law

Specimen Science Conference Harvard Law School Petrie-Flom Center

November 16, 2015

Property Rights in Human Tissue Specimens

Disembodied tissue are chattels subject to ownership

Legal Theory

Property as a “bundle of sticks”

Some restrictions do not negate property status

Case Law

U.S. v. Prince Kumar Arora

Del Zio v. The Presbyterian Hospital of New York

Moore v. Regents (Dissent)

Information within tissue cannot be owned

“Products of nature” doctrine

Assoc. for Molecular Pathology v. Myriad (U.S. Supreme Court)

Transfer of Property Rights

Gift

Washington University v. Catalona

Greenberg v. Miami Children’s Hospital

Issue: Is gift conditional?

Abandonment

Venner v. State of Maryland

Moore v. Regents of the University of California

Issue: Did donor intend to abandon?

Sale

Issue: Is a sale permitted?

Donor Biobank Tissue

Sample

Interpretive Presumptions

Issue

Are donations

conditional or

unconditional?

Are donations

compensated or

uncompensated?

Default

Unconditional

Uncompensated

Altering Rule

Strict

Probably

Strict

Sources of Donor Control Over Uses

Property rights

Informed consent

Privacy

Usually clear

Common law and “Common Rule”

Where the action should be