Posted on March 13, 2008
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1. Property and Your Body
I. Moore v. Regents of University of California (Crt. App.. 1988), p. 90
Facts: P had hairy cell leukemia and had to have his diseased spleen removed by the Ds, who later without P’s knowledge used it to develop a multi-billion dollar cell-line. Moore sued for conversion. He argued; 1) he had property interests in his spleen and that it was used without his consent and 2) breach of fiduciary duty.
Issue: Is there property rights in body parts? Can Moore claim he wasn’t given proper informed consent?
Held: For P
• P argues that his body parts and the cell-line formed from them are his tangible personal property
• The Cal. Civil Code defines property: “the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others”
• The P’s spleen is something over which he enjoyed the unrestricted right to use, control and dispose of.
• No precedence so look to other cases:
• There are limited property rights in dead bodies
• If you can have prop rts in personality, surely you can have prop rts in our genetic material
• The fact that the D’s skill and efforts modified the tissue and enhanced it’s value does not negate the existence of conversion
• There is a science for profit going on, which the P should get to participate in
• A consent to remove organs or blood in surgery does not necessarily imply an intent to abandon the organ, blood or tissue, especially an unconscious patient
• Body parts do not fit the definition of goods or chattels any more than they fit the remaining definitions of personal property
• Property must possess certain characteristics, it must be transferable, capable of being devised and inherited, it can descend to heirs at law, it ca be levied to satisfy judgement, it cannot be taken away w/o due process of law → therefore, body parts aren’t property
• P’s seeking conversion , which awards value at time of conversion → $0. The cells were only worth something b/c of the D’s knowledge and expertise
• There is a risk of a “body part trade” if they are recognized as property
Ratio: There is a property right in body parts even after they’re removed.
II. Moore v. Regents of University of California (Sup Crt, 1990), p. 99
Held: For P, on a breach of fiduciary duty → found consent was not informed. Found the patient did not retain ownership interest in the cells upon removal
• Cells shouldn’t fall under the tort of conversion but rather under laws dealing with human biological materials in which such materials are objects which are unique
• The patented cell line is both factually and legally distinct from the cells taken from Moore’s body
• There is a real fear that of property rights were recognized, this would stand in the way of necessary research
• There must be a balance on both sides → informed consent will protect Moore while allowing research to still occur
• Found there was a breach of fiduciary duty or lack of consent b/c Doctor was acting in self-interest not in the best interests of his patient, and he didn’t tell Moore what was going to happen to his cells
TAKE HOME FROM MOORE:
• Property is a socially imposed right, you don’t just own it, ie. just because it’s a body part
• Can think of rights to security rather than property → ie. security of the person