NOTE

Moore 10 Years Later--Still Trying to Fill the Gap: Creating a Personal Property Right in Genetic Material⁽¹⁾

[Y]et every man has a property in his own person.⁽²⁾

[T]he people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.⁽³⁾

  Introduction

Before there were biotech-companies, recombinant DNA, or Western Blots,⁽⁴⁾ the only interest in the body was the interest in the dead corpse.⁽⁵⁾ Society's main concern was the proper and "decent interment" of the body.⁽⁶⁾

Some of the earliest recorded philosophy on the body was espoused by Sir Edward Coke. Coke stated "`[t]he buriall [sic] of the [c]adaver (that is caro data vermibus) is nulis in bonis, and belongs to [e]cclesiastical cognizance.'"⁽⁷⁾ The basic translation of this statement is that "[t]here can be no property in a dead corpse."⁽⁸⁾

In America, the disposition of the corpse was left to the common law.⁽⁹⁾ Due to the limited use of a corpse at that time, in addition to the societal norms of the day, the only protection given to the corpse was the assurance of an "acceptable disposition."⁽¹⁰⁾

From there, the courts moved to provide property rights in a corpse to the extent that they addressed whether rights in a corpse existed at all, and what rights governed the corpse after burial.⁽¹¹⁾

In recent years, the advances in biotechnology, the sciences, and medicine have vastly out-reached the progression of the law.⁽¹²⁾ Be it state or federal, local or national law, the privatization of these industries has led to a rate of progression with which neither Congress nor the state legislatures have been able to keep pace.

The lag time between the legislatures and the scientific community finally reared its head in the form of the California Supreme Court case of Moore v. Regents of the University of California.⁽¹³⁾ In 1976, John Moore (Moore) was diagnosed with hairy-cell leukemia.⁽¹⁴⁾ He then went to the University of California at Los Angeles (UCLA) Medical Center for further tests and possible treatment.⁽¹⁵⁾ At the Medical Center, Moore was treated by Dr. David G. Golde.⁽¹⁶⁾ Dr. Golde withdrew extensive amounts of blood and "other bodily substances" from Moore.⁽¹⁷⁾ In the process of treating Moore, Dr. Golde noticed that Moore's spleen cells were commercially valuable.⁽¹⁸⁾ Then, without Moore's consent, Dr. Golde created a cell line and sold the cell line to a biotechnology research company.⁽¹⁹⁾ Dr. Golde and the University received a large amount of compensation for the cells line, but at no time did Moore receive any compensation for the cells which came from his body.⁽²⁰⁾ The California Supreme Court then ruled that Moore indeed did not have sufficient property rights in his own cells to create a claim of conversion.⁽²¹⁾

The fact that the Moore court held that Moore did not have a sufficient property interest in his own cells to sue for conversion is anomalous in light of the constitutional guarantees currently afforded to people through the United States Constitution.⁽²²⁾ This current injustice allows a third party to profit from a person's genetic material while not allowing that person to also benefit. This Note argues that, contrary to the Moore court's holding, there should be a sufficient property interest in one's body--based in constitutional guarantees, existing case and statutory law, and property theory--to support a claim of conversion and allow one to profit from the use of his or her genetic materials.⁽²³⁾

Part II.A of this Note begins by discussing the case of Moore v. Regents of the University of California, and how it has created an apparent anomaly in the legal system by denying a person a property interest in their body's own genetic materials.⁽²⁴⁾ Part II.A then discusses the Davis⁽²⁵⁾ and Hecht⁽²⁶⁾ decisions and the part they played in shaping the jurisprudence in this area.⁽²⁷⁾

Part II.B discusses the history and current state of property law, including a discussion of some of the more promising theories as they relate to property rights in genetic materials.⁽²⁸⁾ Part II.C then concludes with a discussion of the history and derivation of the constitutional right to privacy as the basis for a person's rights to bodily autonomy.⁽²⁹⁾

Part III.A-C analyzes the gap between the current state of property rights as they apply to genetic materials,⁽³⁰⁾ and the constitutionally guaranteed rights to privacy and autonomy.⁽³¹⁾ Part III.D discusses how Congress has addressed this issue of property rights in genetic material since the Moore decision.⁽³²⁾ Part III.E then concludes with a suggestion to remedy the apparent gap in the system by affording a person property rights in their own genetic materials.⁽³³⁾

  Background

A.  The Case Law

1.  The Moore Case

In 1976 John Moore (Moore) went to the Medical Center at the University of California, Los Angeles (UCLA), after he was diagnosed with hairy-cell leukemia.⁽³⁴⁾ After Moore was admitted to the hospital, Moore's doctor, David G. Golde (Golde), withdrew extensive amounts of blood and "other bodily substances" from Moore.⁽³⁵⁾ Golde and his assistant, Shirley M. Quan (Quan), performed several tests on the withdrawn substances and determined that Moore's cells "were of great value in a number of commercial and scientific efforts."⁽³⁶⁾ Golde then informed Moore that "he had reason to fear for his life,"⁽³⁷⁾ that Moore should undergo surgery to have his spleen removed, and that "the proposed splenectomy operation . . . was necessary to slow down the progress of his disease."⁽³⁸⁾ Dr. Golde then presented Moore with a standard consent form and explained to Moore all of the information related to the operation.⁽³⁹⁾ At no time did Dr. Golde tell Moore of the potential for commercialization of his spleen cells.⁽⁴⁰⁾ Moore's spleen was then removed.⁽⁴¹⁾

After the operation, Golde told Moore that he would have to return to the hospital for additional, necessary treatment.⁽⁴²⁾ From November 1976 through September 1983, Moore made these follow-up visits.⁽⁴³⁾ At each of these follow-up visits, Golde removed samples of "blood, blood serum, skin, bone marrow aspirate, and sperm" which he used to continue his research of Moore's cells.⁽⁴⁴⁾ The purpose of Golde's research was to isolate Moore's T-lymphocyte cells.⁽⁴⁵⁾ Golde then cloned a cell line⁽⁴⁶⁾ based on Moore's T-lymphocyte cells.⁽⁴⁷⁾ The cell line was named the "Mo cell line."⁽⁴⁸⁾ During the subsequent period of 1981 to 1983, while completing the research on Moore's cells, Golde and UCLA reached an agreement with Genetics Institute, Inc. (GI) and Sandoz Pharmaceuticals Corporation (Sandoz) for commercialization of the Mo cell line and its derivative products.⁽⁴⁹⁾ Then, on March 20, 1984, the United States Patent and Trademark Office (PTO) issued a patent for the Mo cell line.⁽⁵⁰⁾ The patent was issued to both Golde and Quan as co-inventors, and the Regents of UCLA were designated assignees.⁽⁵¹⁾

In September of 1984, Moore sued Golde, Quan, the University, and both GI and Sandoz alleging thirteen causes of action including conversion of property, lack of informed consent, and breach of fiduciary duty.⁽⁵²⁾ The defendants demurred to each of the claims, and the superior court sustained the defendant's demurrers.⁽⁵³⁾ The district court of appeals reversed and held that a person does have a property right in his own body and its materials, and that therefore Moore's complaint adequately stated a cause of action for conversion.⁽⁵⁴⁾ The defendants appealed to the Supreme Court of California for a ruling on the demurrers.⁽⁵⁵⁾

a.  Discussion

The California Supreme Court held that Moore did not have sufficient property rights in his own cells to sustain a cause of action for conversion.⁽⁵⁶⁾ The court based its holding on the lack of sufficiency of Moore's arguments, as well as several social policies which it sought to uphold.⁽⁵⁷⁾

The court first addressed the sufficiency of Moore's arguments, examining whether the tort of conversion provided Moore with a valid cause of action.⁽⁵⁸⁾ The court noted that there was a complete lack of precedent in granting property rights in genetic material.⁽⁵⁹⁾ The court stated that the fact that there was no prior case law granting such rights was paramount to its decision, noting that "[o]nly property can be converted."⁽⁶⁰⁾

The court next addressed Moore's argument that privacy rights in one's likeness should mandate a property right in one's own genetic material.⁽⁶¹⁾ The court summarily dismissed this argument because the cases presented by Moore did not "expressly base [their] holding[s] on property law."⁽⁶²⁾

The Moore court then determined that California had provided for the protection of the public health through its health and safety codes.⁽⁶³⁾ Thus, the court reasoned that the state had already acted to restrict a person's interest in tissue removed from the body.⁽⁶⁴⁾

Finally, the court stated that the fact that a patent had been issued showed that the tissue in question could not possibly belong to Moore.⁽⁶⁵⁾ This was the court's "nail in the coffin" for Moore, stating that he could not possibly own what the PTO claimed another owned. It followed that there could be no claim of conversion by Moore for property which was not his.⁽⁶⁶⁾

The court went on to address policy considerations.⁽⁶⁷⁾ The court claimed that, first and foremost, the rights and interests of Moore were protected by the informed consent doctrine.⁽⁶⁸⁾ This protection, they argued, dispels the need for a property interest, because a "patient may always withhold consent to treatment by a physician whose research plans the patient does not approve."⁽⁶⁹⁾

The court also noted that to allow patients a protectable property interest in their own body would, in essence, put a strangle-hold on the biotechnology industry.⁽⁷⁰⁾ The court stated that "uncertainty about how courts will resolve disputes between specimen sources and specimen users could be detrimental to both academic researchers and the infant biotechnology industry."⁽⁷¹⁾ As will be discussed later, however, many of the policy considerations and underlying reasoning relied on by the court may not do the justice which their analysis suggests.⁽⁷²⁾

2.  Other Important Cases

While the Moore case is the only case to directly address the property rights of genetic material, there are other cases which indirectly speak to this issue, or which address the property right issue as part of their decision-making process.⁽⁷³⁾

a.  Davis v. Davis

One of the first such cases to address the concept of property interests in genetic material was Davis v. Davis.⁽⁷⁴⁾ In Davis, the Tennessee Supreme Court was presented with a custody battle over the disposition of frozen embryotic material.⁽⁷⁵⁾ The plaintiff, Junior Lewis Davis, and the defendant, Mary Sue Davis, after several failed attempts through conjugation, attempted to have children through in vitro fertilization (IVF).⁽⁷⁶⁾ Although the first such attempts at IVF failed, the Davises stored--by means of cryopreservation--some of these fertilized eggs in a storage facility for future attempts.⁽⁷⁷⁾ Before the Davis' decided to use these frozen fertilized eggs, they were divorced.⁽⁷⁸⁾ The result was a "custody" fight for control of the frozen eggs.⁽⁷⁹⁾

As part of its analysis, the Davis court considered whether a fertilized egg was a person or property.⁽⁸⁰⁾ The court referred to a report by the American Fertility Society that discussed the various stages of growth for a fertilized cell.⁽⁸¹⁾ The American Fertility Society Report also commented on the ethics involved when determining the person/property distinction.⁽⁸²⁾ Specifically, the report noted three different views.⁽⁸³⁾ The first view connotes that a preembryo is a "human subject," and that it, therefore, should be afforded the same rights as a person.⁽⁸⁴⁾ The second view is that a preembryo has no rights akin to those enjoyed by a person, and that the embryo is simply tissue with no special properties.⁽⁸⁵⁾ The last and most widely held view is one which takes a position between the first two.⁽⁸⁶⁾ This view holds "that the preembryo deserves respect greater than that accorded to human tissue but not the respect accorded to actual persons."⁽⁸⁷⁾ Adopting the third view, the court concluded that preembryos "occupy an interim category that entitles them to special respect because of their potential for human life."⁽⁸⁸⁾ Because preembryo's fall into this "interim" category, the court held that the Davises did not have a true property interest in them.⁽⁸⁹⁾ The court noted, however, that the Davises "[had] an interest in the nature of ownership, to the extent that they [had] decision-making authority concerning disposition of the preembryos, within the scope of policy set by law."⁽⁹⁰⁾

Although the court gave a lengthy discussion of the property rights of the preembryos, it noted that, "[as] two or eight cell tiny lumps of complex protein, the embryos have no [intrinsic] value to either party. Their value lies in the potential to become, . . . children."⁽⁹¹⁾ Thus, it was more appropriate, the court believed, to address the procreational interests of both parties in order to determine whether the release of the preembryos to one of the parties would affect the other's procreational rights.⁽⁹²⁾ The court determined that a person enjoys both the right to procreate as well as the right not to procreate.⁽⁹³⁾ It is because of this negative right that the court ultimately held that the party wishing not to procreate should prevail.⁽⁹⁴⁾

b.  Hecht and the Devise of Sperm

The case of Hecht v. Superior Court⁽⁹⁵⁾ adds yet another twist to the ongoing formation of the genetic property rights jurisprudence. In Hecht, Deborah Hecht, the petitioner, sought to override a writ "directing the personal representative of [the] decedent's estate to destroy all of the decedent's sperm in the custody of California Cryobank, Inc." (Cryobank).⁽⁹⁶⁾ The decedent had deposited the sperm in Cryobank, and signed a contract which specified that the sperm be released to the executor of the deceased's estate at the executor's direction.⁽⁹⁷⁾ The question before the court was whether the writ issued by the lower court amounted to an abuse of discretion.⁽⁹⁸⁾ In determining that the lower court had in fact abused its discretion, the appeals court stated that, "even if not governed by the general law of personal property, [the stored sperm] occupies `an interim category that entitles them to special respect because of their potential for human life.'"<sup>(99)</sup> Because of this finding, the court held that the decedent had an interest in his sperm, "in the nature of ownership, to the extent that he had decision making authority as to the sperm."<sup>(100)</sup> Continuing, the Hecht court stated that "`no other person or entity has an interest sufficient to permit interference with the . . . providers' decision.'"⁽¹⁰¹⁾ Thus, the court granted property rights to genetic material which has the potentiality-of-life characteristic.⁽¹⁰²⁾

c.  Kass v. Kass

The most recent case to address this issue is Kass v. Kass.⁽¹⁰³⁾ In Kass, Maureen Kass and Steven Kass, a married couple, were having difficulties conceiving through coital relations.⁽¹⁰⁴⁾ Therefore, they sought the help of a fertility clinic.⁽¹⁰⁵⁾ The fertility clinic required that the couple sign a consent form prior to the procedure.⁽¹⁰⁶⁾ The couple underwent ten unsuccessful attempts at the IVF process.⁽¹⁰⁷⁾ The couple then decided to undergo another round of implantation.⁽¹⁰⁸⁾ For this second round of procedures, the couple signed an additional consent form.⁽¹⁰⁹⁾ The second consent form had broadly worded, general language, as well as specific choices which a couple seeking IVF must make prior to the procedure.⁽¹¹⁰⁾

The second round of procedures failed similar to the first.⁽¹¹¹⁾ However, not all of the pre-zygotes had been used during the second round of implantation.⁽¹¹²⁾ Shortly after having been advised that the second round of implantation had failed, the parties sought a divorce.⁽¹¹³⁾ Contained in the divorce decree was a restatement of the parties' intentions with regard to the remaining frozen pre-zygotes: "`The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass[,] Steve Kass or anyone else will lay claim to custody of these pre-zygotes.'"⁽¹¹⁴⁾

However, soon after the decree was signed, Ms. Kass changed her mind and decided that she wanted sole possession of the pre-zygotes.⁽¹¹⁵⁾ She notified the Mather Hospital that she wanted possession of the pre-zygotes, and a court action ensued shortly thereafter.⁽¹¹⁶⁾

Eventually, the New York courts were asked to determine whether eggs fertilized in vitro should be given to the wife for implantation or to the fertility clinic as specified in the fertility clinic consent form.⁽¹¹⁷⁾

The New York Supreme Court ruled in favor of awarding possession of the pre-zygotes to Maureen Kass.⁽¹¹⁸⁾ They determined that the husband's procreative rights in in virto fertilization were no greater than that of a coital fertilization.⁽¹¹⁹⁾ Thus, they determined that the husband's rights terminated at the point of fertilization and the woman, therefore, had unbridled discretion in determining the final disposition of the pre-zygotes.⁽¹²⁰⁾

The New York Court of Appeals reversed the lower court.⁽¹²¹⁾ The court held that a woman's right to exclusive control of her own body, and in fact the issue of bodily integrity, is not implicated in the IVF scenario until the implantation occurs.⁽¹²²⁾ Until that happens, the court reasoned, that privacy interest is not "a relevant and appropriate consideration."⁽¹²³⁾ Further, the court of Appeals stated that its holding was based upon the existence of the parties' statement of intent contained in their consent statements and the uncontested divorce instrument.⁽¹²⁴⁾ The court concluded that "where the parties have indicated their mutual intent regarding the disposition of the pre-zygotes in the event of the occurrence of a contingency, that decision must be scrupulously honored, and the courts must refrain from any interference with the parties' expressed wishes."⁽¹²⁵⁾

Thus, it appears that the Kass court agreed with the interpretation of the Davis court that pre-zygotes enjoy a status greater than that afforded to mere property, but not that of a human being.⁽¹²⁶⁾ Based upon this, the Kass court determined that although the Davis court's balancing approach was a judicially sound one, there was no need to balance the respective rights of the parties when there was clear and unequivocal expression of the parties' intentions for disposition of the genetic material.⁽¹²⁷⁾

This holding, along with the Hecht, Davis, and Moore decisions, creates the current case law base for the determination of property rights in genetic materials.

B. Property Rights

'Property' refers not to a particular material object but to the right and interest or domination rightfully obtained over such object, with the unrestricted right to its use, enjoyment and disposition.⁽¹²⁸⁾

Throughout much of the development of American jurisprudence, the concept of protecting one's property was seen as the best way to guard one's life and liberty interests.⁽¹²⁹⁾ To ensure that this protection would endure, legal theorists and commentators began to formalize their beliefs.⁽¹³⁰⁾

1.  Hohfeld, Honore, and Bundles of Rights

There are a variety of theories on property law. One of the most commonly accepted theories is the "bundle of rights" theory.⁽¹³¹⁾ In large part, this theory is an amalgamation of the Hohfeldian framework of legal relations, and Honore's concept of full ownership.⁽¹³²⁾

a.  Hohfeld's Legal Relations

The foundation for current thought on property law can be seen to stem from Hohfeld's theory of fundamental legal relations.⁽¹³³⁾ Hohfeld felt that there was confusion as to the use of terms such as "right" and "duty."⁽¹³⁴⁾ He wrote, the "inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions."⁽¹³⁵⁾ Hohfeld's answer to this confusion was a series of "fundamental legal relations."⁽¹³⁶⁾ His relations included the following terms: right, duty, privilege, no-right, power, liability, immunity, and disability.⁽¹³⁷⁾ These relations were laid out as a set of "correlatives" and a set of "opposites."⁽¹³⁸⁾

Jural Opposites: right privilege power immunity

no-right duty disability liability

Jural Correlatives: right privilege power immunity

duty no-right liability disability⁽¹³⁹⁾

A right is defined as the legal ability to act.⁽¹⁴⁰⁾ The correlative of a right is a duty.⁽¹⁴¹⁾ A duty is "`a legal obligation [] that [] one ought or ought not to do.'"<sup>(142)</sup> Thus, if person `X' has a right against person `Y' to keep Y off of X's land, then Y has the correlative duty to stay off of X's land.⁽¹⁴³⁾

The next set of correlatives are the "privileges" and "no-rights."⁽¹⁴⁴⁾ A "privilege" is the "mere negation of a duty, . . . [that is,] a duty having a content . . . precisely opposite to that of the privilege in question."⁽¹⁴⁵⁾ Thus, the privilege and the duty represent exact opposites of the same action.⁽¹⁴⁶⁾ Thus, if X has a right to keep Y off his land, X, accordingly, has a privilege to enter the land.⁽¹⁴⁷⁾ To close the example, Y has a duty to stay off X's land; the exact opposite of X's privilege to enter.⁽¹⁴⁸⁾

As stated previously, the correlative of a privilege is a "no-right."⁽¹⁴⁹⁾ A "no-right," using the current example of X and Y, would equate to Y having a "no-right" to enter X's land.⁽¹⁵⁰⁾ This correlates to X's privilege to enter the land, and is opposite to X's right to enter the land.⁽¹⁵¹⁾

The third set of correlatives contains what Hohfeld termed "powers" and "liabilities."⁽¹⁵²⁾ A "power" is the ability to affect a "change of legal relations."⁽¹⁵³⁾ That is, a power enables one to transfer title to property or "to create contractual obligations."⁽¹⁵⁴⁾

The intuitive correlative of a power is a "liability."⁽¹⁵⁵⁾ When, for example, X makes a contractual offer to Y, Y has the power to accept.⁽¹⁵⁶⁾ In this same offer, X will incur a liability.⁽¹⁵⁷⁾ X will be subject to the power of Y if Y accepts the offer.⁽¹⁵⁸⁾ Thus, a liability may be incurred when a power has been exercised.⁽¹⁵⁹⁾

The last set of correlatives contains the concepts of "immunity" and "disability."⁽¹⁶⁰⁾ An "immunity" is the ability to be free from the legal power of another.⁽¹⁶¹⁾ A "disability" is the opposite of a power; that is, a person who does not have the legal power to change a relation is disabled--has a legal disability.⁽¹⁶²⁾ This differs from a liability in that a liability occurs after a power has been exercised.⁽¹⁶³⁾ Whereas, a disability results when a person has no power.⁽¹⁶⁴⁾

The above discussion describes, in part, Hohfeld's model for creating a legally specific set of definitions needed to delineate both property rights and to enable effective communication.⁽¹⁶⁵⁾ However, the modern day property rights model is not based solely upon these definitions. What is needed, in addition to the Hohfeldian basis, is an enunciation of the incidents of ownership⁽¹⁶⁶⁾ which rely on, and ferret out, the scope of the rights Hohfeld discerned.

b.  A. M. Honore and Full Ownership

Although Hohfeld formulated a series of models to clarify legal relations, he merely laid the foundation for the modern theory of property law. Fleshing out the various types of rights Hohfeld enunciated was left to A.M. Honore.⁽¹⁶⁷⁾ Honore developed a concept called "full ownership."⁽¹⁶⁸⁾ Full ownership consisted of eleven different rights,⁽¹⁶⁹⁾ or incidents of ownership.⁽¹⁷⁰⁾ These incidents included the right to possess, the right to use, the right to manage, and the power of transmissibility.⁽¹⁷¹⁾ Honore thought that although a person needs all eleven incidents to have full ownership, a person did not need all of the incidents to have some form of ownership.⁽¹⁷²⁾ Included in Honore's model is the idea that these incidents are subject to varying definitions.⁽¹⁷³⁾ "Transmissibility, for example, is usually defined so as to exclude perpetuities."⁽¹⁷⁴⁾ In addition, "there may be restrictions on what one can own[,]" such as limitations on the scope of these incidents.⁽¹⁷⁵⁾ For example, even though a person may have the right to use a parcel of land, that use could be limited by the legal system.⁽¹⁷⁶⁾

Another feature of Honore's analysis "is that property rights are typically aggregates of different sorts of rights and rights-correlatives."⁽¹⁷⁷⁾ For instance, the right to use land is part privilege and part right.⁽¹⁷⁸⁾ A person, thus, may have the right to use--which amounts to a right--and may exercise that right--which amounts to a privilege.⁽¹⁷⁹⁾

The most important feature--and the feature which deems the Hohfeld-Honore property model the "bundle of rights" model--is that "none of the characteristics which define the full or liberal notion of ownership in modern legal systems is necessary to all varieties of ownership."⁽¹⁸⁰⁾ As a result of this feature, "there are a wide variety of sets of rights which, when they are held by someone, can justify the claim that the person owns something."⁽¹⁸¹⁾ Thus, these sets have come to be known as "bundles," or rather, as "bundles" of rights.⁽¹⁸²⁾

2.  Accession and Specification⁽¹⁸³⁾

While the Hohfeld-Honore model seeks to create a stable set of legal relations upon which to base property law, accession and specification seek to further refine that base. Thus, accession and specification theory does not create a new property law genre. Rather, it helps to resolve those problems too complex for the existing analytical schemes.

An "accession is literally something added" to existing property.⁽¹⁸⁴⁾ The general rule for accession is that the value of the accession follows the object to which it has attached.⁽¹⁸⁵⁾ Thus, the owner of chattel has title to the chattel and all those things "united" with that chattel.⁽¹⁸⁶⁾

Problems arise, however, when the new property is created from the labor of one and the material of another.⁽¹⁸⁷⁾ In ancient Rome, if the labor of one transformed the material of another into an "entirely different species," then the owner of the material lost claim to the new "species."⁽¹⁸⁸⁾ This theory has been labeled the doctrine of specification.⁽¹⁸⁹⁾

Unfortunately, this theory retains its own series of problems.⁽¹⁹⁰⁾ The difficulty in resolving disputes under specification lies in two areas: (1) how much additional value does the new species of chattel need to gain before it becomes the property of the person whose labor added the value? and (2) how does the intent of the person who transforms the original materials enter into the analysis?⁽¹⁹¹⁾

Case law in the United States is erratic as to what value must be reached before a court will allow the trespasser to keep the value of the changed materials.⁽¹⁹²⁾ For example, in Wetherbee v. Green⁽¹⁹³⁾ the court held that "an innocent trespasser, who increased the value of lumber 28-fold by converting it into barrel hoops, acquired title to the new goods thus created."⁽¹⁹⁴⁾ Wetherbee also demonstrates the second problem inherent in a specification analysis; that of the intent of the trespasser.⁽¹⁹⁵⁾ As stated above, the trespasser in Wetherbee was an innocent one.⁽¹⁹⁶⁾ However, where the trespasser is not innocent, it has been stated that

[he who] puts new shape on my matter, that he may by this means rob me of it, he neither gains any rights over the matter by this, nor can demand of me a reward for his labor, any more than a thief who digs through my walls can desire to be paid for his great trouble in making a door into my house.⁽¹⁹⁷⁾

In cases of willful trespass, courts have shown a desire to punish the offender and to deter future acts of a similar nature by awarding the full market value of the converted material to the rightful owner.⁽¹⁹⁸⁾

The result changes, however, when the trespasser acts in good faith.⁽¹⁹⁹⁾ "Where the appropriation of the property of another is accidental, . . . and labor has in good faith been expended upon it which . . . greatly increases its value, . . . the title to the property will be held to pass to the person by whose labor the change has been wrought . . . ."⁽²⁰⁰⁾

This does not mean that the owner of the original material loses the total value of that material. Rather, the owner may recover the value of the materials before their conversion.⁽²⁰¹⁾

3.  Existing Property Rights in Human Materials

In addition to using property theory as a basis for justifying property rights in genetic material, there exists statutory law which discusses certain forms of genetic materials in the context of property rights.⁽²⁰²⁾

a. Uniform Anatomical Gift Act

The Uniform Anatomical Gift Act (UAGA) was approved in 1968 by the National Conference of Commissioners on Uniform State Laws (NCCUSL).⁽²⁰³⁾ It has since been adopted in part or whole by all states and the District of Columbia.⁽²⁰⁴⁾ One of the main purposes of the UAGA was to create an additional supply of transplantable organs that would be available to the medical community.⁽²⁰⁵⁾ The UAGA does not allow the removal of organs without authorized consent.⁽²⁰⁶⁾ For several years, one medical group at the Hastings Center has kept a vigil to determine the effectiveness of the UAGA.⁽²⁰⁷⁾ After thorough observation, the Hastings Center noted several problems with the effectiveness of the UAGA. The Center noted a lack of public understanding and difficulty in finding a donor as two problems central to the UAGA.⁽²⁰⁸⁾

In response to these problems the NCCUSL appointed a committee to propose amendments to the Uniform Anatomical Gift Act.⁽²⁰⁹⁾ "The proposed amendments simplif[ied] the manner of making an anatomical gift and require[d] that the intentions of a donor be followed."⁽²¹⁰⁾ Examples of the more important changes include no witnessing of the document of gift, and "[the] consent of next of kin after death is not required if the donor has made an anatomical gift."⁽²¹¹⁾ The result of these proposals was that the UAGA was amended in 1987 with several of the proposed changes incorporated into the new version.⁽²¹²⁾

Thus, the revised UAGA attempts to make the donation of organs easier than in the original form.⁽²¹³⁾ However, the revised UAGA maintains the restrictions on the sale of organs.⁽²¹⁴⁾ These restrictions on the transfer of human organs will become important when analyzing the breadth and width of federal property rights in genetic materials.⁽²¹⁵⁾

b.  National Organ Transplantation Act

The National Organ Transplantation Act (NOTA) is another statute promulgated by Congress that relates to the property rights of genetic material.⁽²¹⁶⁾ NOTA was created to further promote the donation of organs.⁽²¹⁷⁾ The legislative history, like that of the UAGA, notes that there is a large gap between the number of organ donors and the number of potential recipients.⁽²¹⁸⁾ The history also enunciates a second purpose for NOTA--that of preventing the "for-profit" buying and selling of organs.⁽²¹⁹⁾

However, NOTA does not address the "disposition of body parts other than organs, nor does it deal with dispositions of organs for purposes other than transplants."⁽²²⁰⁾ Specifically, the legislative history states that "[NOTA] is not meant to include blood and blood derivatives, which can be replenished and whose donation does not compromise the health of the donor."⁽²²¹⁾

This qualification will become quite important when analyzing whether public policy is a sound reason to deny property rights in a person's genetic material.⁽²²²⁾ That is, Congress has specifically stated that the policy behind prohibiting the sale of one's body parts is the preservation of life.⁽²²³⁾ Allowing the sale of whole organs could naturally become an impediment to this preservation. However, allowing the sale of genetic material that does not constitute a whole organ may not impede this policy.⁽²²⁴⁾

C.  The Constitution and Privacy⁽²²⁵⁾

"Courts have determined that the Constitution is a living, dynamic document, susceptible to interpretation and expansion regarding the right of personal privacy or a guarantee of certain areas or zones of privacy."⁽²²⁶⁾ The Supreme Court has itself stated that the purpose behind the Fourteenth Amendment's liberty interest did not include "imposing a particular moral standard upon the people."⁽²²⁷⁾ Therefore, to interpret the Constitution strictly would prevent the "interpretation" and "expansion" needed to meet the demands of the current social structure.⁽²²⁸⁾

The right to privacy has roots which date back to the ancient cultures of Indo-Europe.⁽²²⁹⁾ In, America, the concept of the "right to privacy" was originally enunciated by Samuel Warren and Louis D. Brandeis in an article in the Harvard Law Review entitled "The Right to Privacy."⁽²³⁰⁾ In their article, Warren and Brandeis "weaved together various strands of tort law into a single theory which judge Thomas Cooley [later] referred to as the `right to be let alone.'"<sup>(231)</sup> These writings were in response to what Warren and Brandeis saw as abuses of journalism, specifically, the illegality of newspapers printing erroneous and slanderous information.<sup>(232)</sup> "[T]he authors argued that courts should simply recognize [a right to privacy] rather than try to force new cases into old categories."<sup>(233)</sup> This, they believed, "would further the common law trend toward acknowledging both `non-physical' injuries, such as harm to reputation, and `intangible property,' such as goodwill and copyright, by recognizing the nonphysical injury of emotional distress and the intangible property rights inherent in one's private life."⁽²³⁴⁾

Almost forty years later, the United States Supreme Court held that the right to privacy was "broad-based and rooted in the constitution." ⁽²³⁵⁾The right to privacy evolved through several stages in the form of a series of Supreme Court cases which, each in their own way, modified the initial concept of privacy.

The first sign that the Court was going to recognize a right to privacy can be seen in the United States Supreme Court decision of Skinner v. Oklahoma.⁽²³⁶⁾ In Skinner, the Court held that an Oklahoma law, which authorized sterilization of a person convicted for certain crimes of moral turpitude, be struck down on the basis that it violated equal protection.⁽²³⁷⁾ The importance of this decision lies in the fact that "it establishe[s] [an] interest[] in marriage or procreation as one[] of special constitutional significance."⁽²³⁸⁾

The first mention of "privacy" can be found in the United States Supreme Court case of Poe v. Ullman.⁽²³⁹⁾ In Poe, the Court found that the case "did not present a justiciable controversy."⁽²⁴⁰⁾ However, Justice Harlan in his dissent stated that the statute in question violated the Due Process clause because it imposed upon the "privacy" of marriage.⁽²⁴¹⁾

The Court then took another step in the progression toward a right to privacy when it recognized such a right in the case of Griswold v. Connecticut.⁽²⁴²⁾ In Griswold, a doctor was convicted of disseminating information concerning the prevention of pregnancy.⁽²⁴³⁾ The majority opinion found that the statute "impermissibly limited the right of privacy of married persons."⁽²⁴⁴⁾ In essence, the Court held that the law deprived married couples of their liberty interest protected by the Due Process clause of the 14th Amendment.⁽²⁴⁵⁾

To support its opinion, the majority had to create a new "`right to privacy.'"<sup>(246)</sup> Justice Douglas found this new "right to privacy" in the Bill of Rights.<sup>(247)</sup> The Court stated, "[t]he foregoing . . . suggest[s] that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."<sup>(248)</sup> In sum, the majority believed that "various guarantees create zones of privacy."<sup>(249)</sup> The majority then cited examples of how the First, Third, Fourth, and Fifth Amendments have been used by the Court as sources for these zones of privacy.<sup>(250)</sup> The court also noted that the Ninth Amendment could be the site of additional extensions of these penumbras, stating: "`The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"⁽²⁵¹⁾

In his concurrence, Justice Harlan found that protection of the married couple's interest should be afforded in this case.⁽²⁵²⁾ Justice Harlan, however, once again found that this right to privacy was protected by the Due Process Clause as a part of the fundamental liberties.⁽²⁵³⁾

With an established `right to privacy,' it was only a matter of defining the limits which this new right of privacy would reach. Eight years later, the United States Supreme Court further defined these limits in the context of woman's rights. In Roe v. Wade,⁽²⁵⁴⁾ the Court held that a woman's right to decide whether to have an abortion, in essence a right to control her own body, was inherent in the fundamental right to privacy.⁽²⁵⁵⁾

In Roe, the plaintiff challenged the constitutionality of a Texas criminal abortion law.⁽²⁵⁶⁾ The Court fashioned a right to an abortion, based upon a trimester system, and upon the state's interest in both maternal health, and the potentiality of life.⁽²⁵⁷⁾ Specifically, the Court stated that during the first trimester "a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."⁽²⁵⁸⁾ The Court went on to hold that, "subsequent to viability, the State in promoting its interest in the potentiality of human life may . . . regulate and even proscribe abortion."⁽²⁵⁹⁾ By fashioning its decision in this way, the Court allowed the infringement of a woman's right to privacy only when the interests of maternal health or the potentiality of life create a sufficiently compelling state interest.⁽²⁶⁰⁾

The final extension of a person's right to privacy can be found in the case of Cruzan v. Director, Missouri Department of Health.⁽²⁶¹⁾ In Cruzan, the United States Supreme Court determined that "a competent person has a liberty interest under the Due Process clause in refusing unwanted medical treatment."⁽²⁶²⁾ The petitioner in Cruzan was the family of an individual in a persistent vegetative state.⁽²⁶³⁾ The family wanted the hospital to remove the life sustaining treatment.⁽²⁶⁴⁾ The state would not remove the treatment unless the family could prove by clear and convincing evidence that the removal of such treatment was what the incompetent person would want if able to enunciate her own desire.⁽²⁶⁵⁾ The Supreme Court held that the common law doctrine of informed consent made it clear that the right to refuse medical treatment was socially accepted.⁽²⁶⁶⁾ The Court then stated that a similar right to refuse medical treatment "may be inferred from our prior decisions."⁽²⁶⁷⁾

Thus, the Court held that a person's right to self determination--or autonomy--is one that can be limited by the state's interest in preserving life, but only when the individual's wishes can not be readily ascertained.⁽²⁶⁸⁾

However, the Supreme Court has recently clarified it's Cruzan opinion through the case of Vacco v. Quill.⁽²⁶⁹⁾ In Vacco, three doctors brought suit against the New York Attorney General challenging the constitutionality of a New York statute making it a crime to aid a person in committing or attempting to commit suicide.⁽²⁷⁰⁾ The doctors believed that "because New York permits a competent person to refuse life-sustaining medical treatment, and because the refusal of such treatment is `essentially the same thing' as physician-assisted suicide, New York's assisted suicide ban violates the Equal Protection Clause."<sup>(271)</sup> The United States Supreme Court disagreed with the doctors, stating that the difference lies in the intent of the act.<sup>(272)</sup> The Court noted that persons who wish to have life sustaining treatment removed may not necessarily `intend' to end their own life, while those who ask doctors to prescribe treatment that they know will cause them to die have the specific intent to die.⁽²⁷³⁾ This specific intent, the Court reasoned, was the same as that of suicide, an act against which this country has had a long standing legal and ethical prohibition.⁽²⁷⁴⁾ The Court held that the state of New York had a legitimate state interest in preserving this distinction, and thus upheld the state statute.

While Vacco did not change the right to control one's body, the ruling did clarify the holding in Cruzan. Thus, even if a competent person's wishes can be readily ascertained, those wishes will not be followed where a doctor would have to act to end a life rather than remove a machine which sustains it.⁽²⁷⁵⁾

Having etched the boundaries of the right to privacy, it now becomes a question of relating the existing rights to an analysis involving genetic material.

  Analysis

[N]o reason exists for the law to provide greater protection to common chattels than to items of such a personal and intimate nature as one's own biological and genetic make-up.⁽²⁷⁶⁾

The analysis that follows suggests the possibility of granting property rights in both life-potential and non-life-potential genetic materials. However, there currently exists more substantive support for property rights in non-life-potential genetic materials.⁽²⁷⁷⁾ Thus, although the Analysis will delineate between the two types of genetic material, it will ultimately focus on genetic material that has no potential for creating life.⁽²⁷⁸⁾

A.  The Case Law

The leading cases of Moore,⁽²⁷⁹⁾ Davis,⁽²⁸⁰⁾ Hecht,⁽²⁸¹⁾ and Kass⁽²⁸²⁾ suggest that there may be a progression towards granting property rights in a person's genetic materials. The analysis of these cases will necessarily include both criticism of their holdings, as well as a discussion of the contribution each has made to the existence of a property right in genetic materials.

In Moore, the California Supreme Court had two main policy considerations which prevented it from granting Moore property rights in his own genetic materials.⁽²⁸³⁾ The first of these two arguments was that the informed consent doctrine allowed patients to "withhold consent to treatment by a physician whose research plans the patient does not approve."⁽²⁸⁴⁾ The court reasoned, that if a doctor fully informs the patient, then there would be no problem like the one in Moore--where the doctor did not fully inform the patient--because the patient would then have no cause for complaint.⁽²⁸⁵⁾ This reasoning, however, seems to be optimistic.⁽²⁸⁶⁾ The court's reasoning completely disregards the possibility that a patient may decide not to undergo treatment until that patient can find a doctor willing to give the desired remuneration.⁽²⁸⁷⁾ This could also prove harmful to the patient, as it may be some time before the patient finds a suitable arrangement.⁽²⁸⁸⁾ Thus, it appears that there may be some flaws with a pure informed consent-type remedy.

A second reason that the court gave for denying Moore property rights in his own genetic materials is that such property rights may negatively affect the biotechnology industry.⁽²⁸⁹⁾ Quoting the now defunct Office of Technology Assessment, the court stated that "`uncertainty about how courts will resolve disputes between specimen sources and specimen users could be detrimental to both academic researchers and the [] biotechnology industry, particularly when the rights are asserted long after the specimen was obtained.'"⁽²⁹⁰⁾ In addition, the court found that uncertainty in the title of the genetic materials may diminish a company's interest in investing in research and development of this variety.⁽²⁹¹⁾

However, it has become increasingly apparent that instead of protecting the technology industry from the specimen sources' demands, it may be necessary to protect society--and the specimen sources--from the technology industry. For example, one recent survey done by Boston researchers found that the ties between academic institutions and the technology industry are both numerous and detrimental.⁽²⁹²⁾ The survey "`confirm[ed] the widespread impression that involvement with commercialization' and academic-industry ties are associated with the tendency of life-sciences faculty to withhold research results."⁽²⁹³⁾ In one such case, the survey found that the Knoll Pharmaceutical Company had engaged in an extended campaign of legal threats to prevent California researchers from publishing results showing that Knoll's thyroid treatment was no more effective than that of its competitors. Knoll, of course, had promoted the treatment as being more effective than its contemporary counterparts.⁽²⁹⁴⁾ The Boston survey also found that researchers who "were engaged in commercialization of their research . . . were three times more likely to delay publication of their results and more than twice as likely to refuse to share information or materials."⁽²⁹⁵⁾ In fact, forty four percent of those surveyed stated that the delay was due to a company agreement, or to protect the scientists' own financial interests.⁽²⁹⁶⁾

In another drug-specific study, researchers found that of the scientists who supported the use of a class of drugs to treat hypertension, most "have undisclosed financial ties to the companies that make them."⁽²⁹⁷⁾ The survey, published in the New England Journal of Medicine, found that ninety-six percent of the authors who supported these treatments had "financial relationships with the drug makers."⁽²⁹⁸⁾ Dr. Alan Hillman, Director of the University of Pennsylvania's Center for Health Policy, stated "[p]hysicians and researchers are human beings, and human beings respond to financial interests," noting the obvious conflict of interest in such an arrangement.⁽²⁹⁹⁾

In the end, the Moore court's very acknowledgment of the problems surrounding ownership of the genetic materials dictates that a solution be created. Tailoring a property right in genetic materials and placing knowledge of this right in a consent form may be a start.⁽³⁰⁰⁾

Although useful in pointing out some of the inadequacies of the current objections to granting property rights in a person's genetic materials, the Moore case's usefulness to this analysis may end there. The next step, then, is to begin building an argument for granting property rights in a person's genetic materials. This argument begins with the Davis and Hecht cases.

In Davis, the court was faced with a custody battle over frozen embryos.⁽³⁰¹⁾ The court determined that the embryo was neither person nor property, but rather something that "deserves greater respect than that accorded to human tissue but not the respect accorded to actual persons."⁽³⁰²⁾ The Davis court held that embryos "occupy an interim category . . . because of their potential for human life."⁽³⁰³⁾ This characterization is paramount to both the Davis decision and to the furthering of property rights.⁽³⁰⁴⁾ If the Davis court had been faced with genetic material that had no potential for human life, then it is quite possible that the court would have found a property right in the material. For example, the court often looked to the American Fertility Society's Report (AFS Report) for guidance.⁽³⁰⁵⁾ The AFS Report states that "[a]t the opposite extreme is the view that the preembryo has a status no different from any other human tissue[,] [and therefore] no limits should be imposed on actions taken with preembryos."⁽³⁰⁶⁾ What seems clear is that, had there been no potential-for-human-life issue, the court would have had little problem in determining that the material could be possessed and treated as any other type of personal property.⁽³⁰⁷⁾ Indeed, the remainder of the Davis decision focused on the procreational and privacy rights of the parties involved.⁽³⁰⁸⁾

Most recently, the indirect affirmation of the Davis decision by the New York Court of Appeals shows that the reasoning used by the Tennessee court may have been judicially sound.⁽³⁰⁹⁾ Thus, to this point, the determining factor appears to be the potentiality-of-life status of the genetic material involved.⁽³¹⁰⁾ The next logical step is to see what happens when, instead of custody, the question centers around the ability to pass the genetic material by will--thus giving the genetic material a legal quality accorded to all types of personal property.⁽³¹¹⁾

Hecht v. Superior Court is just such a case.⁽³¹²⁾ In Hecht, the court was faced with a lower's court order which denied the plaintiff the ability to receive sperm that was devised to her.⁽³¹³⁾ The Court of Appeals, quoting Davis v. Davis, stated that the stored sperm "occupies `an interim category that entitles them to special respect because of their potential for human life.'"⁽³¹⁴⁾ Because of this finding, the court held that the decedent had an interest in his sperm "in the nature of ownership, to the extent that he had decision making authority as to the sperm."⁽³¹⁵⁾ "[The] decedent had an interest in his sperm which falls within the broad definition of property in [the] Probate Code . . . ."⁽³¹⁶⁾

Thus, the Hecht court granted property rights, in the "nature of ownership,"⁽³¹⁷⁾ for genetic material that had the potential-for-human-life characteristic.⁽³¹⁸⁾ By granting rights to determine decision-making authority in this special category of genetic material,⁽³¹⁹⁾ the court may have opened the door for "full" property rights in those materials which do not have this potential-for-life characteristic. Nearly identical to the discussion in Davis, the court in Hecht found determinative the fact that the stored material had the potential for life; and yet the court still granted a property interest to this material.⁽³²⁰⁾ This same theory was echoed by the New York Court of Appeals in Kass.⁽³²¹⁾ Based on the Davis, Hecht, and Kass decisions, it appears that control and disposition of genetic material that does not have a potential for human life would be guaranteed.⁽³²²⁾ Thus, one can only question whether the Moore case would have come out differently had it used the Davis/Hecht reasoning.

B.  Property Rights and Their Relation to Genetic Materials

A careful analysis of the Moore, Davis, Hecht, and Kass cases reveals that there may be some common law basis for the creation of a property right in one's genetic materials.⁽³²³⁾ Thus, the next step in determining whether a base currently exists for property rights in genetic materials is to examine existing property theory and statutory compilations.

1.  Bundle of Rights and Statutory Considerations

After determining that non-life-potential material may command the same property rights as any other personal property, the next step is to fit the specific property into the framework of the Hohfeldian model.⁽³²⁴⁾ "Genetic information encoded in DNA fits within the description of property under [] the Hohfeldian framework . . . ."⁽³²⁵⁾ With respect to genetic information, a person can hold several of the rights, privileges, powers, and immunities that would attach to genetic material's status as property.⁽³²⁶⁾

Each person, therefore, has a "right to possession and use of his DNA, free from the interference of others, leading to a correlative duty in others to avoid interrupting that person's use."⁽³²⁷⁾ Likewise, people have a privilege to deny access to their genetic material.⁽³²⁸⁾ People already have the power to alienate--or pass--their genetic material to progeny and others by will,⁽³²⁹⁾ and to store their genetic material at a cyropreservation storage facility.⁽³³⁰⁾ Further, people are free from having their genetic material taken from them by force.⁽³³¹⁾ Because a person does not have the right to sell certain types of genetic material, analyses of the property rights associated with the genetic material often classify the material as incomplete property.⁽³³²⁾ The problem with that classification is that many believe that in order for property to protectable, it must have the incidents of "complete property" rights.⁽³³³⁾ This misconception becomes paramount in many commentators' analyses, as they cite this lack of completeness as the reason for classifying property as non-protectable.⁽³³⁴⁾ However, rights in property need not be complete in order to be protectable.⁽³³⁵⁾ In fact, there are several other forms of property, such as financial instruments, guns, and liquor which are recognized as protectable yet which are not deemed complete property.⁽³³⁶⁾

Therefore, even if an individual were deemed not to have "complete rights" in his genetic material, that material still could be considered personal property and carry with it certain "sticks" from the bundle of rights inherent in that designation.⁽³³⁷⁾

2.  Accession and Specification

As stated above, "an accession is literally something added."⁽³³⁸⁾ Thus, in a case such as Moore, where the doctor added value to Moore's T-lymphocyte cells by patenting a method for reproducing them, the method of reproduction would probably be considered an accession.⁽³³⁹⁾ Because the patent for the Mo cell line⁽³⁴⁰⁾ was given for the "modified biogenetic product,"⁽³⁴¹⁾ and not for the cells themselves, this modified biogenetic product may well qualify as an accession.⁽³⁴²⁾ The general rule for accession is that the value of the accession follows the object to which it has attached.⁽³⁴³⁾ As such, the owner of the object has title to all those things "united" with that chattel.⁽³⁴⁴⁾ It could be argued, therefore, that because the patent is merely an accession, that the owner of the original materials should have title to that patent.⁽³⁴⁵⁾ In this case, however, the problem appears to be that the material of one has been combined with the labor of another--this situation describes the theory of specification, and not that of accession.⁽³⁴⁶⁾

Specification theory states that if the labor of one changes the material of another into an "entirely different species[,]"⁽³⁴⁷⁾ then the owner of the material loses claim to the new species.⁽³⁴⁸⁾ As noted previously, if the person who exerts labor knowingly trespasses, or willfully converts, then that laborer receives no benefit for that labor.⁽³⁴⁹⁾ Although this rule may solve the Moore case, it can be assumed that not all misappropriations of genetic materials are knowing or willful. Thus, even in cases of good faith conversion, the person from whom the materials were taken still receives the fair value of the raw materials.⁽³⁵⁰⁾ Therefore, in the current analysis, people who act as a source for genetic materials, should, at the very least, receive some sort of remuneration for those materials.⁽³⁵¹⁾

3.  National Organ Transplantation Act and the Uniform Anatomical Gift Act

In addition to the case law and property rights theories, statutory law exists which may be helpful to this analysis. The National Organ Transplantation Act (NOTA) was enacted to promote the donation of organs, and to prevent the "for-profit" buying and selling of organs.⁽³⁵²⁾ The legislative history for NOTA, however, indicates that NOTA was not intended to cover "blood and blood derivatives, which can be replenished and whose donation does not compromise the health of the donor."⁽³⁵³⁾ T-lymphocytes cells, the cells which were the subject of the Moore case, are merely a different type of replenishable cell.⁽³⁵⁴⁾ It would appear, therefore, that Congress would not have difficulty including all replenishable cells within its exemption from NOTA.⁽³⁵⁵⁾ Thus, although NOTA was promulgated to encourage the donation of organs, and to prevent the buying and selling of these same organs, NOTA clearly does not cover replenishable genetic materials such as "blood and blood derivatives" which were the subject of the Moore case.

C.  Constitutional Considerations

In addition to the case law and property rights foundation, constitutional support may exist for the protection of a person's genetic material.⁽³⁵⁶⁾ The following discussion centers on the right to privacy. However, the Constitutional discussion should be considered complimentary, not contradictory, to the property rights discussion thus far.

The first "official" right to privacy was created in the case of Griswold v. Connecticut.⁽³⁵⁷⁾ The Court stated, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."⁽³⁵⁸⁾ It was these guarantees that the majority believed created "zones of privacy."⁽³⁵⁹⁾ These zones of privacy protect people from an invasion of their privacy rights found under the First, Third, Fourth, Fifth, and Ninth Amendments to the Constitution.⁽³⁶⁰⁾

One example of this protection came in the form of women's rights in Roe v. Wade.⁽³⁶¹⁾ In Roe, the United States Supreme Court held that a state could invade a person's privacy only when the state's interest in maternal health and the potentiality of life exceeded that of the person.⁽³⁶²⁾ This holding reveals two crucial policies that the Court is enforcing.⁽³⁶³⁾

The first is to maintain the health of the general population, which the Court demonstrates by allowing the state to invade a person's privacy in the interest of maintaining health standards.⁽³⁶⁴⁾ The second policy that the Supreme Court is trying to maintain is the protection of the potentiality of life.⁽³⁶⁵⁾ The Court in Roe sought to protect the potentiality of life present during pregnancy.⁽³⁶⁶⁾ Again, the Court stated that the state may only invade the privacy of a person when there is a compelling state interest which supersedes the interest of the person involved.⁽³⁶⁷⁾

The next step is to utilize these policies in light of the current discussion. Where no detriment to health exists, and there is no potentiality of life situation to contend with, it would appear that the United States Supreme Court would not allow a state to interfere with a person's decision regarding their own body.⁽³⁶⁸⁾ Thus, when a situation such as that in the Moore case arises, where there is no health issue involved and no potentiality of life at stake, it appears that the Constitution may protect one from an unwanted invasion of their person.⁽³⁶⁹⁾

The Supreme Court used a similar theory in the case of Cruzan v. Director, Missouri Department of Health.⁽³⁷⁰⁾ In Cruzan, the family of a person in a persistent vegetative state wanted to remove the life sustaining treatment from that person.⁽³⁷¹⁾ The United States Supreme Court held that "a competent person has a liberty interest under the Due Process clause in refusing unwanted medical treatment."⁽³⁷²⁾ Further, the Court stated that, even for an incompetent person, the only time life sustaining treatment could be removed is when the family speaking for the incompetent person could prove the incompetent person's desire to have such treatment removed.⁽³⁷³⁾ The reason the state could require such proof, the Court stated, was because of "its interest in the protection and preservation of human life. . . ."⁽³⁷⁴⁾

Thus, similar to the situation in Roe, the Supreme Court sought to maintain the state's ability to preserve the life of its citizens.⁽³⁷⁵⁾ The Court noted, however, that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions[,]"⁽³⁷⁶⁾ and therefore "[it can be] assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."⁽³⁷⁷⁾ In fact, the Supreme Court later held that a person did have a right to refuse unwanted lifesaving treatment, but in that same decision held that a person did not have the right to have death induced.⁽³⁷⁸⁾ It is apparent, therefore, that the state may not invade the privacy of a competent person--not even in life or death situations--if the person does not desire the state to do so.⁽³⁷⁹⁾

The preceding analysis provides some basis--at the Constitutional level--for the protection of a person's genetic material under the guise of privacy rights.⁽³⁸⁰⁾ In terms of this Note then, it becomes clear that there can be no unwanted invasion of a person's physical being without that person's consent.

D.  Current Congressional Remedies

It has been ten years since John Moore lost his battle for the determination that he had enough rights in his body to create a claim of conversion against Dr. Golde.⁽³⁸¹⁾ In that time, Congress has not made any direct attempts to address this issue. Thus, there currently are no statutory guidelines establishing personal property rights in one's own genetic material. The following section will discuss some of the current attempts to regulate the area of genetic information. While none of the proposals directly suggest a personal property right in genetic material, each bill attempts to regulate the information associated with genetic material, and sets guidelines for how this information should be protected from misuse by the insurance industry and employers. The main vehicle for many of these bills is the concept of informed consent.⁽³⁸²⁾ However, as will be discussed, informed consent may not be the best remedy, let alone sufficient to protect something so precious as one's right in their own body.⁽³⁸³⁾

1.  The Bills⁽³⁸⁴⁾

The Genetic Privacy and Nondiscrimination Act of 1997 was sponsored by Representative Stearns in January, 1997.⁽³⁸⁵⁾ This bill is aimed directly at insurance companies' use of genetic information.⁽³⁸⁶⁾ It proscribes the use of genetic information to "reject, deny, limit, cancel, refuse to renew, increase the rates of, or otherwise affect health insurance."⁽³⁸⁷⁾ This bill also provides that employers may not use genetic tests to discriminate against any employee in providing benefits.

Another bill, the Genetic Information Health Insurance Nondiscrimination Act of 1997, serves as an amendment to the Public Health Service Act and the Employee Retirement Income Security Act of 1974.⁽³⁸⁸⁾ This bill, like the Genetic Privacy and Nondiscrimination Act of 1997, seeks to prevent health insurance companies from requesting or using genetic information as a basis for any type of determination in connection with either group or individual health plans.⁽³⁸⁹⁾

The last bill from the House of Representatives is H.R. 2215, The Genetic Nondiscrimination in the Workplace Act.⁽³⁹⁰⁾ The least detailed of the proposals, this Act seeks to amend the Fair Labor Standards Act of 1938.⁽³⁹¹⁾ This bill provides for the use of genetic information by an employer as long as the individuals releasing the information have given their authorization and have been fully informed of the intended use of their genetic information.⁽³⁹²⁾

In the Senate, there are a number of bills which address the issue of genetic information. This Note addresses two of these bills. The first is The Genetic Justice Act.⁽³⁹³⁾ This Act addresses the use of genetic information in conjunction with employment, employment agencies, and labor organizations.⁽³⁹⁴⁾ Specifically, this Act proposes to make it unlawful for employers, labor organizations, or training programs to "limit, segregate, or classify the employees . . . in any way that would . . . tend to deprive any individual of employment opportunities, or otherwise adversely affect the status of the individual as an employee" through the use of genetic information.⁽³⁹⁵⁾

Perhaps the most comprehensive of all the Bills is the Genetic Confidentiality and Nondiscrimination Act of 1997 (GCNA).⁽³⁹⁶⁾ This bill covers collection and storage of genetic information,⁽³⁹⁷⁾ disclosure of genetic information,⁽³⁹⁸⁾ authorization for collection and storage of the genetic samples,⁽³⁹⁹⁾ prohibition of discrimination,⁽⁴⁰⁰⁾ research activities,⁽⁴⁰¹⁾ and enforcement.⁽⁴⁰²⁾

The GCNA has a complex structure to help prevent the unwanted dissemination of information derived from genetic material, including compulsory disclosures to the individual, and authorizations by the individual from which the genetic material was removed.⁽⁴⁰³⁾ The GCNA also details specific guidelines for the collection and storage of the samples requiring initial disclosure of all intended research related uses as well as continuing disclosure for all uses not originally described to the donor individual.⁽⁴⁰⁴⁾ Lastly, this bill provides for significant penalties in the event that a collecting agency, researcher, or employer violates the provisions of the Act.⁽⁴⁰⁵⁾ This penalty include fines of up to $100,000, as well as punitive damages, for willful violations of the Act.⁽⁴⁰⁶⁾

2.  Analysis

All of the bills listed, both from the House of Representatives and the Senate, were promulgated to prevent the insurance industry from basing rates or coverage decisions upon a person's predisposition to a disease as determined by genetic testing. Each bill has specific provisions directly addressing either the health or life insurance industry by way of specific limits on the use of genetic information.⁽⁴⁰⁷⁾ However, none of these bills provide for a property right in genetic material.

Even the most comprehensive bill, the Genetic Confidentiality and Nondiscrimination Act of 1997, does not provide for a property right in genetic material.⁽⁴⁰⁸⁾ Instead, this Bill provides for extensive informed consent procedures.⁽⁴⁰⁹⁾ While there are penalties provided for breach of the provisions contained in S. 422, they may be inadequate to protect a person's genetic material. The reason for its insufficient protection lies in its method for addressing the problem. For example, the allowance of punitive damages is helpful, but problematic because punitive damages are inconsistent in application and are granted after the injury has occurred--in effect a "band-aid" to cover the injury. This Note argues that a better solution may be to provide actual rights in the genetic material, thereby creating a solution to the problem rather than covering it up.⁽⁴¹⁰⁾

E.  Discussion

Thus far, the analysis has provided several possible sources of protection for a person's genetic material. These sources range from case law, to theories of property law and state statutory law, to Constitutional law.⁽⁴¹¹⁾ Yet, none of these sources provide solid ground upon which to guarantee property rights in a person's own genetic material. The following section discusses suggestions for the nature and creation of such a protective right.

1.  Nature of the Property Right in Genetic Material

The promulgation of a law creating personal property rights in a person's genetic materials should contain two parts. The first part should grant personal property rights in one's non-life-potential genetic material.⁽⁴¹²⁾ The second part should create a mandatory remuneration clause in the standard consent form.⁽⁴¹³⁾ The Constitution grants many rights which exist with limitation.⁽⁴¹⁴⁾ For example, the right to bear arms guaranteed by the Second Amendment⁽⁴¹⁵⁾ is limited by various laws.⁽⁴¹⁶⁾ Restrictions upon registration, type, and carrying of arms are all commonly known restrictions upon this Constitutional right.⁽⁴¹⁷⁾

Just as other rights may be granted and restricted, so too could a federal personal property right for non-life-potential genetic material be created and restricted.⁽⁴¹⁸⁾ This designation of personal property would allow a person to sue for the unwanted taking of their genetic material.⁽⁴¹⁹⁾ Because this right is a property right, it would bring with it some of the incidents of ownership--for example, transmissibility.⁽⁴²⁰⁾ This particular "stick" out of the bundle would allow a person to sell their genetic material.⁽⁴²¹⁾

Once a right in personal property is granted, it could then be limited.⁽⁴²²⁾ For example, though a person should have enough rights in their own genetic material to sell it, the right to sell could be limited.⁽⁴²³⁾ In fact, current statutory framework already speaks to this issue.⁽⁴²⁴⁾

To begin with, NOTA creates a federal prohibition against the sale of body parts.⁽⁴²⁵⁾ This prohibition does not apply to "replenishable derivatives whose donation does not compromise the health of the donor."⁽⁴²⁶⁾ In addition, both NOTA and the UAGA prevent the sale of whole organs.⁽⁴²⁷⁾ Thus, a person could sell only those genetic materials which do not compromise the health of the individual, are replenishable, and which do not constitute a whole organ.⁽⁴²⁸⁾ In this way, the personal property right in genetic material would be in accord with existing legislative policies.⁽⁴²⁹⁾ However, the creation of this right would allow for a specific ground upon which a claim of conversion could be made.⁽⁴³⁰⁾

The second part of a federal rule that would create personal property rights should also provide for some form of remuneration for the use of the owners cells.⁽⁴³¹⁾ The remuneration clause can be written into the consent form. The clause should provide for a predetermined amount of remuneration, with an additional type of remuneration required if the genetic material in question is used as the basis of a profitable cell line.⁽⁴³²⁾

Standardizing the remuneration for the sale of genetic material has several important benefits.⁽⁴³³⁾ Standardization eliminates the problems of trying to prevent patients from seeking profit over the well being of the body.⁽⁴³⁴⁾ It also prevents negotiations for each individual cell specimen which would be both time consuming and expensive.⁽⁴³⁵⁾ A third benefit would be a reduction, if not total elimination, in the doctor's conflict of interest between the patient's best interest and the doctor's financial interests.⁽⁴³⁶⁾ Lastly, this remuneration clause would compliment the current disclosure requirements.⁽⁴³⁷⁾ It would remedy that which commentators have cried out against as the illogical result of the Moore decision--that the biotechnology company and Dr. Golde could gain financially from Moore's genetic material, but Moore himself could not.⁽⁴³⁸⁾ The remuneration clause would allow the contributor of the source materials--the materials without which the profitable cell lines and other resulting products could not be made--to receive compensation for that contribution.⁽⁴³⁹⁾

As for the biotechnology industry, which both the Office of Technology Assessment and the Moore court sought to protect, the clause goes a long way towards easing the concerns that both noted.⁽⁴⁴⁰⁾ Specifically, the remuneration clause could increase the number of potential source-material donors⁽⁴⁴¹⁾ who would volunteer.⁽⁴⁴²⁾

Moreover, viewed in light of the ever increasing relationship between researchers and the biotechnology industry, this remuneration clause would seem to be a necessity created out of the principles of equity.⁽⁴⁴³⁾ In short, with all of the money being spent to secure researchers loyalty, it would only seem fair to allow the material donor a "piece of the pie."⁽⁴⁴⁴⁾

2.  Creation of a Property Right in Genetic Material

Once the nature of the right has been determined, all that remains is to find a vehicle in which to house that right. This Note has suggested that the best way to prevent repeated injustice, as it occurred in the Moore case, is to establish a personal property right in one's own genetic material.⁽⁴⁴⁵⁾ The vehicle that appears to be the most conducive to providing for the right in this case is the Commerce Clause,⁽⁴⁴⁶⁾ which allows the government to regulate those matters affecting interstate commerce.⁽⁴⁴⁷⁾

Because the Commerce Clause empowers the federal government to regulate interstate commerce, and because the biotechnology industry operates across state lines--and is in fact a national industry--the Commerce Clause should be a useful tool in regulating the biotechnology industry.⁽⁴⁴⁸⁾ Thus, it appears that the biotechnology industry could be regulated by the Commerce Clause.

Once the vehicle has been determined, the only remaining task is to fashion the basic form which a bill of this nature should take. In order to thoroughly address the issue, it would be helpful to review the goals of this legislation--and this Note.⁽⁴⁴⁹⁾ The first and foremost of these goals is the creation of a personal property right in one's own non-life-potential genetic material.⁽⁴⁵⁰⁾ The second goal is to allow for compensation for the use of one's genetic material in research, while creating the possibility of additional remuneration in the event that those genetic materials become commercially profitable.⁽⁴⁵¹⁾ The following is a basic model for a federal bill creating personal property rights in one's non-life-potential genetic material.⁽⁴⁵²⁾

MODEL BILL

SECTION 1. SHORT TITLE

This Act may be cited as the Genetic Material Ownership Act of 1998.

SECTION 2. FINDINGS AND PURPOSES.

SECTION 3. DEFINITIONS.

As used in this Act:

(1) Genetic Material-The term "genetic material" means all material derived from the human body that does not have the potential for life, nor constitute a whole organ.

(2) Research--The term "research" means all research done on the genetic materials by researchers that does not directly relate to the treatment of the individual. Research shall include all collection and analyzation that has no direct bearing on the status of the patient.⁽⁴⁵³⁾

(3) Researcher--The term "researcher" means any person or entity who undertakes research for the purpose of technical, medical, or biological improvement or profit.

(4) Source Individual--The term "source individual" means the individual from whom the genetic material was taken.

(5) Sample type--The term "sample type" means a specific type of cells or genetic material.

(6) Commercially profitable--The term "commercially profitable" refers to any product of research or analyzation which has a commercial value, or potential value--greater than $xxxxxx.xx.

(7) Collection--The term "collection" means both collection and/or storage of genetic material.

TITLE I-OWNERSHIP OF AND COMPENSATION FOR GENETIC MATERIAL

SECTION 101. OWNERSHIP OF GENETIC MATERIAL

(a) Ownership of genetic material.--Genetic material is the property of the individual who contributed the material.

(b) Rights--The owner of the genetic material shall have the right to posses, use, manage, transfer, income, capital, and security with respect to that material.⁽⁴⁵⁴⁾

SECTION 102. COMPENSATION FOR USE OF GENETIC MATERIALS

(a) Standard Compensation--Each individual who's genetic material is procured for the reasons of non-treatment related research shall receive compensation in the amount of $xxx.xx per sample type:

(1) For each sample of material withdrawn from the source individual, a separate compensation shall be paid in the amount specified under section 102 (a).

(b) Supplemental Compensation--Once there has been a determination that the genetic material may be commercially profitable, there shall be supplemental compensation paid to the source individual upon the assignment of the genetic material to the researcher. The compensation shall be in the amount of $xxxx.xx.

(1) After a determination that the genetic material may be commercially profitable, a separate supplemental compensation shall be paid in the amount of $xxxx.xx for each sample of material withdrawn from the source individual.

(c) Additional Compensation--Each individual who has given genetic material of at least one sample type, and received the standard compensation and supplemental compensation as described under sections 102(a) and (b), shall be eligible for additional compensation in the following manner:

(1) For each separate and distinct sample type that becomes the source for a commercially profitable product:

(A) the researcher shall provide the source individual with a consent form which will:

(i) assign the right to control the sample to the researcher,

(ii) describe the number of additional samples needed, and describe the method of obtaining the additional samples,

(iii) require the standard disclosure of medical information for the procedures needed to obtain the samples; and

(iv) state that compensation will be given in return for the samples and assignment of the right to control the samples as described in (B).

(B) the owner shall receive additional compensation in the amount of X% of the total gross profit for that product, for each of the first ___ (x) years that the product is commercially profitable.⁽⁴⁵⁵⁾

SECTION 103. NOTICE OF RIGHTS AND ASSURANCES⁽⁴⁵⁶⁾

Any person who collects genetic material, for the purposes of research or analysis, shall provide the source individual, prior to the collection, a notice of rights and assurances that contains the following:⁽⁴⁵⁷⁾

(1) That the sample will be used only as authorized in the written authorization.⁽⁴⁵⁸⁾

(2) That the genetic material sample is the property of the source individual.⁽⁴⁵⁹⁾

(3) That the individual has the right to order the destruction of the genetic sample at any time prior to when the individual assigns the genetic material to the research.⁽⁴⁶⁰⁾

(4) That the individual has the right to compensation for the genetic material contributed for any non-treatment related research as provided for under section 102 (a) and (b).

(5) That the individual can designate another person as the one authorized to make decisions and receive any compensation due regarding the genetic sample after the death of the actual source owner. Any individual so designated should notify the researcher or facility using the genetic sample.⁽⁴⁶¹⁾

(6) That the individual who contributes genetic material deemed commercially profitable may enter into a contract with the researcher for the purpose of continued research of the designated sample. The result of this contract may entail possible additional remuneration to be paid to the individual as well as require possible additional genetic material contributions by the individual.⁽⁴⁶²⁾

TITLE II-ENFORCEMENT

SECTION 201. CIVIL REMEDIES⁽⁴⁶³⁾

(a) Private Right of Action--Any person whose rights under the Act have been violated may maintain a civil action for damages or equitable relief as provided for in this section.

(b) Jurisdiction--An action may be brought under this section in the district courts of the United States or a State court of competent jurisdiction.

(c) Relief--In any action brought under this section, a court may order a person to comply with the provisions of this Act and may order any other appropriate equitable relief.

(d) Liability for Negligent Violations--Any person who through negligence collects or analyzes a genetic sample in violation of this Act shall be liable to the individual for each such violation in an amount equal to:

(1) any actual damages sustained as a result of the collection or analysis, or $50,000, whichever is greater;

(2) in any case where such violation has resulted in profit or monetary gain, treble damages; and

(3) in the case of a successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.

(e) Liability for Willful Violations--Any person who:

(1) through a request, the use of persuasion, under threat, or with promise of reward, willfully induces another to collect or analyze a genetic material sample in violation of this Act, or

(2) willfully collects or analyzes a genetic material sample in violation of this Act shall be liable to the individual for each such violation in an amount equal to:

(A) any actual damages sustained as a result of the collection of analyzation, or $100,000, whichever is greater;

(B) punitive damages as the court may allow; and

(C) in the case of a successful action under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.

(f) Statute of Limitations--Except with respect to subsection (g), any action under this section must be brought within 6 years of the date that the alleged violation was or should have been discovered.

(g) Tolling of Limitations--If the person entitled to maintain an action under this section is a minor, or is incapacitated by reason of mental illness when the right to bring as action first occurs, the action may by commenced up to 10 years after the disability is removed.

  Conclusion

There currently exists a gap between what has been deemed personal property in the state realm of property law, case law, Constitutional guarantees of privacy, and those protections afforded to a person's genetic material.⁽⁴⁶⁴⁾ This gap has created inequities at the most personal level--one's own body. By looking at the policies behind the current statutory law and examining the case law and Constitutional rights to privacy, it becomes apparent that there is a need to specifically provide federally what is currently missing.⁽⁴⁶⁵⁾ Namely, the right to control one's body. It is already possible to prevent the unwanted invasion of one's body,⁽⁴⁶⁶⁾ and thus it is only the logical extension of that right to be able to control those products or materials of one's body. To do so, it may require that the federal legislature address directly the personal property rights inherent in one's body. The legislature has already spoken indirectly to this issue through legislation protecting genetic information.⁽⁴⁶⁷⁾ It is now time to address this issue directly and fill the anomalistic genetic property gap that currently exists.

Erik B. Seeney^*

1. See generally Mary T. Danforth, Cells, Sales, and Royalties: The Patient's Right to a Portion of the Profits, 6 Yale L. & Pol'y Rev. 179 (1988). The seminal article, written ten years ago, was the first to note the possible problems which could arise out of John Moore's dilemma.

2. John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publishing 1980) (1690). John Locke was speaking of the labor had in the person, stating that the work wrought by him was his own property. See id.

3. 1 The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, at 622 (James Morton Smith ed., 1995). The quote was written in a letter by James Madison to Thomas Jefferson as part of Madison's original draft for the Bill of Rights. See id.

4. Recombinant DNA is defined as "[a] broad range of techniques involving the manipulation of the genetic material of organisms; . . . also used to describe a DNA molecule constructed by genetic engineering techniques and composed of DNA from different individuals or species." U.S. Congress, Office of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells 158 (1987) [hereinafter OTA Report].

Western blotting is a technique used in gene manipulation. See R.W. Old & S.B. Primrose, Principles of Gene Manipulation: An Introduction to Genetic Engineering 10 (N.G. Carr et al. eds., 4th ed., Blackwell Scientific Publications 1989). The process "involves the transfer of . . . protein bands from a . . . gel onto a membrane . . . , to which they bind strongly." Id. (citations omitted). After the proteins are bound to the membrane, the "proteins are then available for analysis by a variety of specific . . . interactions." Id.

5. See William Boulier, Note, Sperm, Spleens, and other Valuables: The Need to Recognize Property Rights in Human Body Parts, 23 Hofstra L. Rev. 693, 705 (1995).

6. Id.

7. Id. (quoting 3 Edward Coke, Institutes of the Laws of England 203 (1644) (footnotes omitted)).

8. Id. at 706 (quoting 2 Edward H. East, A Treatise of the Pleas of Crown 652 (Professional Books Ltd. 1987) (1803).

9. See id. at 707.

10. See id.

11. See Boulier, supra note 5, at 707.

12. See Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 280 (Cal. App. 2 Dist. 1993); see also infra Part II.A.2.b.

13. 793 P.2d 479 (Cal. 1990).

14. See id. at 481.

15. See id.

16. See id.

17. Id. at 481.

18. See id.

19. See Moore, 793 P.2d at 481-82.

20. See id. at 488-97.

21. See id. at 489.

22. See infra notes 356-80 and accompanying text.

23. See infra Part III.

24. See infra notes 34-72 and accompanying text.

25. See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); see also infra Part II.A.2.a.

26. See Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (Cal. App. 2 Dist. 1993); see also infra Part II.A.2.b.

27. See infra notes 74-102 and accompanying text.

28. See infra notes 128-224 and accompanying text.

29. See infra notes 225-75 and accompanying text.

30. This will include both common law and statutory comparisons.

31. See infra notes 279-380 and accompanying text.

32. See infra notes 381-410 and accompanying text.

33. See infra notes 411-52 and accompanying text.

34. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 481 (Cal. 1990).

35. Id.

36. Id.

37. Id.

38. Id.

39. See id.

40. See Moore, 793 P.2d at 481.

41. See id.

42. See id.

43. See id. Moore returned to the Medical Center "based upon representations `that such visits were necessary and required for his health and well-being, and based upon the trust inherent in and by virtue of the physician-patient relationship.'" Id. (quoting the trial court's findings of fact).

44. Id. at 481. Marrow is defined as "the soft organic material that fills the cavities of the bones; called also medulla." Sloan-Dorand Annotated Medical-Legal Dictionary 433 (1987).

45. See Moore, 793 P.2d at 482.

46. A cell line is defined as "[a] sample of cells that has undergone the process of adaptation to artificial laboratory cultivation and is capable of sustaining continuous, longterm growth in culture." OTA Report, supra note 4, at 156.

47. See Moore, 793 P.2d at 481. A T-lymphocyte is defined as a "white blood cell involved in the immune response of vertebrates that originates in the bone marrow, matures in the thymus gland, and produces some lymphokines. . . . T-Lymphocytes are important to antibody production and the enhancements or suppression of an immune response." OTA Report, supra note 4, at 158.

48. See Moore v. Regents of the Univ. of Cal., 249 Cal. Rptr. 494, 501 (Cal. App. 2 Dist. 1988).

49. See Moore, 793 P.2d at 482.

50. See id.; see also David W. Golde & Shirley G. Quan, U.S. Patent No. 4,438,032. (Mar. 20, 1984) (patenting a unique T-lymphocyte line and derivative products) [hereinafter Mo Patent]. The invention summary for the Mo cell line states that

[a] cell line (Mo) has been established with spleen cells from a patient with a T-cell variant of hairy-cell leukemia. The cells have been shown to be capable of continuous culture for an indefinite period of time, while maintaining the proteins . . . .

. . . .

The cells provide a continuous source of the above proteins, as naturally modified which can be isolated by conventional ways. In addition, due to the constitutive production of the proteins, the cells provide either directly or indirectly, a source of the genes for the proteins of interest, which by conventional genetic engineering techniques, can be introduced into microorganisms for continuous large scale production of the proteins.Id.

51. See Moore, 793 P.2d at 482.

52. See id. at 482 n.4, 482-83. Moore also claimed fraud and deceit, unjust enrichment, quasi-contract, breach of implied covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent misrepresentation, interference with prospective economic relationships, slander of title, accounting, and declaratory relief. See Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. 494, 498 (Cal. Ct. App. 1988), rev'd, 793 P.2d 479 (Cal. 1990).

53. See Moore, 793 P.2d at 482.

54. See id.; see also Moore, 249 Cal. Rptr. at 500-01 (holding that the demurrers as to the claim of conversion were "improperly sustained because the plaintiff had adequately stated a cause of action for conversion"). The California Court of Appeals also held that the case should be remanded to the trial court so that the trial court could rule on the remaining causes of action, stating that the other 11 causes of action were never "expressly ruled upon." Id.

55. See Moore, 793 P.2d at 479.

56. See id. at 488. Although the thrust of this Note will suggest several theories as to why there should be property rights in the genetic material of the human body, a basic understanding of how conversion will protect this property right is useful to the overall understanding of the Note.

The tort of conversion originated with the common law action of trover. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 15, at 89 (5th ed. 1984). In order to establish an action in trover, a plaintiff would have to allege that he "was possessed of certain goods, that he casually lost them and that the defendant did not return them, but instead converted the goods to his own use." Id. In time, these elements became outdated--treated as a legal fiction. See id. Modern conversion law provides that the plaintiffs only need to prove the interference with their possessory interest in the property. See id. For example, the Restatement (Second) of Torts § 222A (1965) defines conversion as "an intentional exercise of dominion or control over the a chattel which so seriously interferes with the right to control it that the actor may be justly be required to pay the other the full value of the chattel." Id. Under the Restatement, "a claimant must show that he owns the property allegedly converted, that the property was wrongfully taken and that damages were sustained." Id.; see also Luisa A.M. Giuffrida, Casenote, Moore v. Regents of the Univ. of Cal.: Doctor Tell Me Moore!, 23 Pac. L.J. 267, 272 (1991) (discussing the common law and modern elements of the tort of conversion).

57. See Moore, 793 P.2d at 488-97.

58. See id. at 488.

59. See id. at 489.

60. Id. at 489-90.

61. See id. at 488-91 (citing Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979) (holding that the right to use one's name and likeness is reserved to that person and may only be exercised by that person)); see also Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (holding that people have an interest in their likeness and that nonconsensual use of that likeness can be remedied through tort law).

62. Moore, 793 P.2d at 490.

63. See Cal. Health & Safety Code § 7054.4 (West 1997). This code provides for the sanitary disposal of infectious wastes. The Code states that "infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department to protect the public health and safety." Id. The Code defines "infectious waste" as "any material or article which has been . . . exposed to contagious or infectious disease." Id. However, this argument seems specious since the disease Moore was afflicted with was a blood disorder--one which is neither infectious nor contagious. See supra note 47 and accompanying text.

64. See Moore, 793 P.2d at 491-92.

65. See id. at 492-93. There is an inherent problem in the court's argument; the patent for the Mo cell line is both a method patent and a patent for a modified biogenetic product. See Mo patent, supra note 50. A method patent is one which grants rights to an inventor for a process or procedure for creating some new, useful invention. See 35 U.S.C. § 101 (1994). Because the Mo cell line patent is a patent for a process using the Mo cell line as well as a modified product, it does not grant rights for the original cells themselves, but for the process described and product created. See Mo Patent, supra note 50. Thus, Moore could still have ownership rights in the sample cells because those rights were never transferred to Golde. See id. This means that the grant of the patent by the United States Patent & Trademark Office may not have necessarily severed Moore's possessory rights to his genetic material. That Moore's rights were severed in other ways is still a point of conjecture.

66. See Moore, 793 P.2d at 493 ("Thus, Moore's allegations that he owns the cell line and the products derived from it are inconsistent with the patent, which constitutes an authoritative determination that the cell line is the product of the invention.").

67. See id.

68. See id. at 483-84, 491-93.

69. Id. at 492. The court also noted that the informed consent doctrine had its problems. The main problem being that if the economic interest arises before the patient has been fully treated, the doctor's disclosure may be compromised because of competing interests. See id. at 484-85.

70. See id. at 493.

71. Id. (quoting OTA Report, supra note 4, at 31-46). The California Supreme Court relied heavily on the OTA report, citing to the report for all of its assessments on the biotechnology industry. See id.

72. See infra Parts II.A-C, III.A-E.

73. See infra notes 74-127 and accompanying text.

74. 842 S.W.2d 588 (Tenn. 1992).

75. See id. at 589.

76. See id. at 591. In vitro fertilization is a process whereby an egg from the donating female is taken and placed into a petri dish. The egg is then fertilized with sperm from her partner. The product of this fertilization is then transferred to the female's uterus, or to the uterus of a surrogate mother. See id.

77. See id. at 592. Cryopreservation is the process of freezing the fertilized egg in liquid nitrogen and then storing the frozen product at sub-zero temperatures. See id.

78. See id.

79. See id.

80. See Davis, 842 S.W.2d at 594-97.

81. See id. at 593. The Davis court quoted the American Fertility Society Report, stating:

The stage subsequent to the zygote is cleavage, during which the single initial cell undergoes successive equal divisions with little or no intervening growth. As a result, the product cells (blastomeres) become successively smaller, while the size of the total aggregate of cells remains the same. After three such divisions, the aggregate contains eight cells in relatively loose association. . . . [E]ach blastomere, if separated from the others, has the potential to develop into a complete adult . . . . Stated another way, at the 8-cell stage, the developmental singleness of one person has not been established.

Beyond the 8-cell stage, individual blastomeres begin to lose their zygote-like properties. Two divisions after the 8-cell stage, the 32 blastomeres are increasingly adherent, closely packed, and no longer of equal developmental potential. The impression now conveyed is of a multicellular entity, rather than of a loose packet of identical cells.

As the number of cells continues to increase, some are formed into a surface layer, surrounding others within. The outer layers have changed in properties toward trophoblast . . . , which is destined [to become part of the placenta]. The less-altered inner cells will be the source of the later embryo. The developing entity is now referred to as a blastocyst, characterized by a continuous peripheral layer of cells and a small cellular population within a central cavity . . . . It is at about this stage that the developing entity usually completes its transit through the oviduct to enter the uterus.

Cell division continues and the blastocyst enlarges through increase of both cell number and [volume]. The populations of inner and outer cells become increasingly different, not only in position and shape but in synthetic activities as well. The change is primarily in the outer population, which is altering rapidly as the blastocyst interacts with and implants into the uterine wall . . . . Thus, the first cellular differentiation of the new generation relates to physiologic interaction with the mother, rather than to the establishment of the embryo itself. It is for this reason that it is appropriate to refer to the developing entity up to this point as a preembryo, rather than an embryo.Id. (emphasis added) (quoting Ethical Considerations of the New Reproductive Technologies, 53 J. Am. Fertility Soc'y, June 1990, at 31S-32S [hereinafter AFS Report]). See generally Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va. L. Rev. 437 (1990).

One of the more important findings of the AFS Report was that "at the 8-cell stage, the developmental singleness of one person has not been established. Beyond the 8-cell stage, the individual blastomeres begin to lose their zygote-like properties." Davis, 842 S.W.2d at 593 (quoting AFS Report, supra, at 31S-32S).

82. See AFS Report, supra note 81, at 34S-35S.

83. See id. The American Fertility Society report stated:

Three major ethical positions have been articulated in the debate over preembryo status. At one extreme is the view of the preembryo as a human subject after fertilization, which requires that it be accorded the rights of a person. This position entails an obligation to provide an opportunity for implantation to occur and tends to ban any action before transfer that might harm the preembryo or that is not immediately therapeutic, such as freezing and some preembryo research.

At the opposite extreme is the view that the preembryo has a status no different from any other human tissue. With the consent of those who have decision-making authority over the preembryo, no limits should be imposed on actions taken with preembryos.

A third view--one that is most widely held--takes an intermediate position between the other two. It holds that the preembryo deserves respect greater than that accorded to human tissue but not the respect accorded actual persons. The preembryo is due greater respect than other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, is not yet established as developmentally individual, and may never realize its biologic potential.Id.

84. Id.

85. See id.

86. See id.

87. Id.

88. Davis, 842 S.W.2d at 597. The court followed the American Fertility Society's suggestion to IVF programs:

Within the limits set by institutional policies, decision-making authority regarding preembryos should reside with the persons who have provided the gametes. . . . As a matter of law, it is reasonable to assume that the gamete providers have primary decision-making authority regarding preembryos in the absence of specific legislation on the subject. A person's liberty to procreate or to avoid procreation is directly involved in most decisions involving preembryos.Id. (quoting AFS Report, supra note 83, at 36S).

89. See Davis, 842 S.W.2d at 597.

90. Id.

91. Id. at 598.

92. See id.

93. See id. at 601.

94. See id. at 604. It should be noted that the Davis court held determinative the fact that Mary Sue Davis did not want the preembryos for her own impregnation, but rather for donation. The court stated that the question would be much closer if Mary Sue had wanted the preembryos for herself. See id.

95. 20 Cal. Rptr. 2d 275 (Cal. App. 2 Dist. 1993).

96. Id. at 276.

97. See id.

98. See id.

99. Id. at 281 (quoting Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992)).

100. Id.

101. Hecht, 20 Cal. Rptr. 2d at 289 (quoting Davis, 842 S.W.2d at 602).

102. See id. at 291.

103. 663 N.Y.S.2d 581 (1997).

104. See id. at 583.

105. See id.

106. See id.

107. See id.

108. See id.

109. See Kass, 663 N.Y.S.2d at 584.

110. Specifically, the form stated:

In the event that we no longer wish to initiate a pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to:

. . . .

(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program.

Id. at 584 (quoting the IVF Program's consent form).

111. See id.

112. See id.

113. See id.

114. Id. (quoting the couple's divorce decree). It should be noted that the divorce decree was never submitted to the court for final disposition. See id. at 585.

115. See Kass, 663 N.Y.S.2d at 584-85.

116. See id. at 585.

117. See id.

118. See id.

119. See id.

120. See id. The supreme court went on to hold that the choices made by the Kass' in the second consent form were not applicable in a divorce action, and that Ms. Kass had sole discretion in deciding the future of the pre-zygotes, including to decide whether or not to have children through the implantation of the pre-zygotes. See id.

121. See Kass, 663 N.Y.S.2d at 586.

122. See id.

123. Id.

124. See id. Both the New York Supreme Court and New York Court of Appeals had a discussion concerning the case of Davis v. Davis. See generally id.; see also supra notes 76-96 and accompanying text. The court of appeals, however, noted a distinction between the Kass and Davis cases. The New York court noted that the Kass' had created several statements of their intentions for disposition of the frozen gametic material. To the contrary, the Davis court was forced to create a balancing approach in the absence of such written instructions for the disposition of the frozen gametic material. See Kass, 663 N.Y.S.2d at 586-87; see also supra notes 76-96 and accompanying text.

Central to the court of appeals' decision was the consent form. The plaintiff, Ms. Kass, asserted that the language "in the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction," should have been dispositive of the issue. Kass, 663 N.Y.S.2d at 588-89 (quoting the IVF Program consent form, Addendum No.2-1). The court reasoned that this language only conferred jurisdiction upon the court and was not a licence for de novo review and disposition of the pre-zygotes. See id. The court further stated that the consent form language "death or unforseen circumstances," which preceded the mandatory choice for disposition, was not a condition precedent to executing the effect of provision (b) of the consent form. See id. at 588 (citing the IVF Program consent form, Addendum 2-1, § 2(b)).

125. Kass, 663 N.Y.S.2d at 590.

126. See supra notes 83-96 and accompanying text.

127. See Kass, N.Y.S.2d at 586-87.

128. 63C Am. Jur. 2d Property § 1, at 228 (1997).

129. See Catherine M. Valerio Barrad, Comment, Genetic Information and Property Theory, 87 Nw. U.L. Rev. 1037, 1053 (1993) (citing The Federalist No. 54, at 339 (James Madison) (Clinton Rossiter ed., 1961).

130. See infra text accompanying notes 133-203.

131. See Lawrence C. Becker, Property Rights: Philosophic Foundations (1977) (discussing several theories of property law, each of which starts with the assumption of the Hohfeldian-Honore bundles of rights model). But see J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. Rev. 711, 712 (1996). Penner defiantly states "the claim I wish to make here is that this "dominant paradigm" is really no explanatory model at all, but represents the absence of one." Id.

132. See Penner, supra note 131, at 711, 712; Tony Honore, Making Law Bind: Essays Legal and Philosophical 161-92 (Clarendon Press (1987)). See also Becker, supra note 131, at 21-22.

133. See Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning 36 (Walter Cook ed., 1919).

134. Id. at 25-26.

135. Id.

136. Id.

137. See id. at 36-64.

138. Id. at 36. For the purposes of this Note, a brief discussion of the correlatives and opposites will be included to help elucidate the complexity of Hohfeld's system. For a more complete understanding of Hohfeld's legal correlatives and opposites, as well as an insight into the implications of this system, see id. at 35-64.

139. See Hohfeld, supra note 133, at 36.

140. See id. at 36-38.

141. See id. at 38.

142. Id. at 38 (quoting Lake Shore & M.S. Ry. Co. v. Kurtz, 37 N.E. 303, 304 (1894) (holding that evidence of causation does not cure a complaint whose chief defect lies in the knowledge of the party against whom the action was brought).

143. See Hohfeld, supra note 133, at 38 (using the same example to clarify the difference between a right and a duty).

144. See id.

145. See id. at 39.

146. See id.

147. See id.