Property Rights in Body Parts and Genetic Material

The question of who owns your cells, your DNA, or your excised tissue sits at the explosive intersection of law, medicine, and commerce. As biotechnology advances, creating immense value from human biological materials, the legal system struggles to balance individual autonomy, scientific progress, and ethical imperatives. Understanding the emerging property interests in these materials is crucial for navigating future debates about privacy, profit, and personal dignity.

The Foundational Case: Moore v. Regents and the "No Property" Rule

The modern legal framework for bodily property rights was largely established by the landmark 1990 California Supreme Court case, Moore v. Regents of the University of California. John Moore was treated for hairy cell leukemia at UCLA Medical Center. His doctors, without his knowledge or consent, used his uniquely valuable and overproducing spleen and blood cells to create a patented cell line—a population of cells grown in culture—with an estimated commercial value in the billions.

Moore sued, claiming a property interest in his excised tissues and a share of the profits. The court’s ruling created a nuanced, and for patients, a limited precedent. It rejected Moore's claim for conversion (a tort that protects against wrongful interference with personal property). The court held that once tissue is voluntarily removed from the body, the donor no longer retains a property interest in it. To rule otherwise, the court argued, would cripple medical research by creating endless litigation over every cell sample and blood vial.

However, the decision was not a complete loss for patient rights. The court strongly upheld Moore’s claim for lack of informed consent. It established that a physician has a fiduciary duty to disclose any research or economic interests that may affect their medical judgment before a procedure. This created a critical legal pathway: while you may not "own" your tissue as property after it leaves your body, you retain control over it through the right to informed decision-making before its removal.

The Ethical Tension: Property, Personhood, and Commodification

The Moore decision highlights a deep philosophical tension. Traditional property law deals with objects separate from the self, but the body and its components are intimately connected to personal identity and autonomy. Many ethical frameworks resist the full commodification of the human body—treating it as a mere object of market trade—fearing it could undermine human dignity and lead to exploitation.

This tension creates a spectrum of legal treatment. Organs for transplant, for instance, are governed by the National Organ Transplant Act (NOTA) in the U.S., which prohibits the sale of human organs for transplantation, enforcing a "gift" or "altruistic" model. In contrast, sperm, eggs, and hair can often be sold, treated as services or goods. Blood plasma is legally considered a "donation," but donors are frequently compensated, a practice legally distinguished from a sale. The law thus applies different rules based on the type of tissue, its purpose, and deeply held social norms about what parts of ourselves can be alienated as property.

Patent Rights in Genetic Sequences

If individuals have limited property rights in their raw biological materials, can corporations own patents on genes? For decades, the U.S. Patent and Trademark Office granted patents on isolated DNA sequences, arguing that isolating and purifying a gene from the body made it a "human-made invention." This allowed companies like Myriad Genetics to hold patents on the BRCA1 and BRCA2 genes, linked to breast cancer, and control all diagnostic testing.

This practice was fundamentally challenged in the 2013 Supreme Court case Association for Molecular Pathology v. Myriad Genetics. The Court drew a critical distinction. It held that a naturally occurring DNA segment is a product of nature and not patent-eligible merely because it has been isolated. However, complementary DNA (cDNA)—which is synthetically created from messenger RNA and lacks non-coding regions—is patent-eligible because it is not naturally occurring. Furthermore, the Court affirmed that new applications of knowledge about genes, or novel methods of manipulation, remain patentable.

This ruling narrowed but did not eliminate property rights in genetics. It prevented the ownership of the natural information itself but preserved incentives for innovation in creating useful, man-made applications derived from that information.

Informed Consent as the Primary Procedural Safeguard

Given the limited recognition of post-excision property rights, informed consent has become the law's primary tool for protecting individual autonomy. Modern consent forms for biobanks and research must move beyond simple permission for removal and therapeutic use. They now often address:

• Future Research Scope: Will the sample be used only for a specific study, or stored for broad, unspecified future research?
• Commercial Potential: Is there a chance the research could lead to commercially valuable products like drugs or diagnostics?
• Return of Results: Will the donor receive individual health findings from the research?
• Anonymization: Will the sample be linked to the donor’s identity, coded, or completely anonymized?

A key legal and ethical debate revolves around broad consent versus specific consent. Broad consent allows for wide future research use, facilitating large-scale biobank studies crucial for medical advances. Specific consent requires re-contacting donors for each new study, protecting autonomy but creating logistical barriers. The law is evolving to require that consent processes be transparent about these possibilities, even if a property right to profits is not granted.

Common Pitfalls

1. Conflating Property Rights with Informed Consent Rights: A common mistake is believing the Moore case gave patients no rights. It denied a property (conversion) claim but powerfully affirmed an informed consent claim. The right to control what happens to your body is protected procedurally before tissue is taken, not necessarily by property ownership afterward.
2. Assuming All Biological Materials Are Treated the Same: The law applies a patchwork of rules. Selling a kidney is a felony; selling hair is a routine commercial transaction; donating blood is altruistic but plasma "donors" are often paid. The context (organ, renewable tissue, reproductive material) dictates the legal treatment.
3. Misunderstanding the Scope of Gene Patents Post-Myriad: After the Myriad decision, some believe no genetic inventions can be patented. This is incorrect. Patents on naturally occurring DNA sequences are barred, but patents on synthetic cDNA, novel genetic tests, therapeutic methods, and engineered genes remain available, protecting downstream innovation.
4. Overlooking the Role of Biobank Agreements: When you contribute to a research biobank, the terms of the consent form and the associated material transfer agreement govern your rights—not a general property law. Failing to read and understand these documents means you may unknowingly consent to broad commercial use without any share in benefits.

Summary

• The cornerstone case Moore v. Regents established that individuals do not retain a property right to share profits from inventions derived from their excised tissues, but they have a robust right to informed consent regarding any economic or research interests before tissue removal.
• The law treats different biological materials differently, reflecting an ongoing ethical tension between recognizing property interests and resisting the full commodification of the human body.
• While naturally occurring gene sequences themselves are no longer patentable (Myriad decision), synthetically created cDNA and methods of using genetic knowledge remain eligible for patents, protecting commercial biotech innovation.
• In the absence of strong post-excision property rights, the specificity and transparency of the informed consent process is the critical legal mechanism for protecting individual autonomy in the age of genomic research and biobanking.