A Question of Property Rights in the Human Body

( by Randy W. Marusyk and Margaret S. Swain)

Uncomfortably for the lawyer, the nature of humanity, the organization of society and the very persistence of civilization are now profoundly and increasingly affected by the scientist and the mathematician. Lawyers clinging to familiar civil, political and economic rights, substantially defined before the scientific revolution of recent decade, run the risk of failing to address urgent problems... simply because these are so complex, controversial or unfamiliar. (M. Kirby, Human Rights and Technology. A New Dilemma (1988), 22, U.B.C.L. Rev. 123 at 123).

As biotechnology opens new doors to improve the quality of human life, the legal community must expand the existing legal framework to accommodate them. For the first time, medical research has forced society to address such formidable issues as the patentability of new life-forms, the transplantation of fetal tissue into human beings and the existence of property rights in the human body – key issues which require explicit definition of our society's moral and ethical principles. Growth of the legal framework is imminent, but if allowed to come about on an ad hoc basis, determined by case law, the resulting structure will be makeshift and riddled with faults. Thus it is essential that the legal community study this situation in depth and plan for the future; only such planning will ensure that these changes will come about by design rather than by crisis.

One area of biotechnology that has recently placed intense pressure on the legal community centres around the commercialization of medical research involving the use of human tissue. Whereas, prior to commercialization of medical research, human tissue was determined to be worth only a few dollars, the massive profit potential realized from medical technology has elevated the monetary worth of human tissue to incalculable levels. This monetary pressure is causing the public to demand that the legal community create avenues of remuneration that will compensate justly the donors of human tissue, while maintaining society's moral and ethical standards – a difficult, if not impossible, request. At the same time, property rights in the products of such research must be clearly defined to ensure that biotechnological companies will be able to secure the fruits of their labour.

The question is how the legal system is beginning to explore possible avenues to balance these demands. One suggested avenue places great emphasis on remunerating the donor of tissue through the recognition of property rights in human tissue and bodily substances. It is reasoned that if people hold property rights in their bodies, they will be allowed to sell or protect their tissue to the full extent of the law. At first glance it seems like a reasonable way in which a person could receive a share of the profit in return for their contribution. However, after exploring many of the ramifications that could result, it will become obvious that property rights must not be recognized in human tissue.

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fetal - эмбриональный, зародышевый

imminent - неотвратимый, неизбежный, неминуемый

makeshift -замена, подручное средство

to riddle with sth - пронизывать, содержать(ся) в большом количестве; изобиловать

remuneration - вознаграждение, оплата, компенсация

ramifications - последствия, результат

Answer the following questions: