The human genetic blueprint's double helix shape was described in a scientific paper 50 years ago today. However, we are no nearer to definingin law who owns our genes, writes Asim A. Sheikh.
Controversy surrounds the ownership of genes, DNA and human tissue/biological materials. The well-known legal phrase "possession is nine-tenths of the law" denotes the general legal concept that possession is evidence of ownership.
Can it, however, be said that human tissue and genes are materials that can be "owned" once in the possession of any party? If a hospital/researcher obtains a blood sample from a patient/research participant, do they then own that blood sample or the DNA within it?
Can they utilise the sample as they wish and for whatever they wish? For example, can they patent any aspect of that sample and then commercially exploit such a sample? It may seem ridiculous that once any donor gives a blood sample, the hospital could have a proprietary right in that sample since the same substance physically exists inside the donor, who would of course be free to donate another sample to any other party. This, however, is not as ridiculous as it seems, and there is great ambiguity in relation to the medico-legal stance over the ownership and control of human biological materials and genes.
Clearly there can be no claim of ownership over another living human being. That would be slavery and slavery has also been defined as a condition of an unfree person who has no rights and who is in the ownership of his master.
However, if there can be no property in a whole living person, does it stand to reason that there can be no property in any part of a living person? If there were, can it be said that this could equate to some sort of "biological slavery"? Any amount of effort spent pondering the issue of "ownership" in human biological materials with existing law leaves more questions than answers.
The current starting point in looking at the question of control is dependent on the consent a donor gives. It is a well-established tenet of law that no medical treatment whatsoever (including the taking of a sample) can be given to any patient without first obtaining their consent.
Where a sample is given by a donor to the hospital or researcher without conditions or qualifications, current legal thought seems to indicate that the donor has either given the sample by way of a gift, or has abandoned the sample.
In this situation, control over that sample is vested in the hospital or researcher, and they may be free to do with that sample as they wish.
In the well-known US case of Moore v the University of California (1990), the patient Moore was diagnosed as suffering from hairy-cell leukaemia. His doctor realised that Moore's cells possessed unique properties that were commercially invaluable. This realisation, however, was never communicated to Moore. The doctor obtained a tissue sample from the spleen to replicate its DNA and on several post-operative visits, the doctor obtained additional and various tissue samples which were used to develop the eventual "invention" (the "Mo-cell line") for which a patent was filed, its inventors being named as the doctor and his associate, and the invention being patented by the university.
An agreement was then entered into with two biotech companies, and the estimated value of this agreement was thought to have exceeded several billion dollars. After repeated inquiries from Moore as to whether there was a financial interest involved, he instituted proceedings against the doctor, the university and the biotech companies.
His claim was for a breach of duty by the doctor for removing his cells without his informed consent and that the unauthorised removal amounted to a conversion (denial by another of the owner's right over his/her property) since he retained a proprietary interest in his cells even after their removal, and that he was entitled to share in the profits.
Moore failed on the issue of having a proprietary interest in his cells, but the California Supreme Court held that the doctor had breached his duty to his patient by not disclosing to him his interests.
Normally a patient will be told in the course of normal medical treatment by way of the consent form that tissue and blood samples may be removed for treatment and diagnosis only and that they will not be used for any other purposes without obtaining the consent of the patient.
In genetic research, the participant will be told what will be done with their sample during the research, what may be done with it in the future, and that they will not be entitled to benefit financially in any way if the research leads to the development of a new treatment.
Once such a consent form is signed, control vests in the donee,and current patent law then permits such a donee to acquire patent rights over any element isolated from the human body including the sequence or a partial sequence of a gene. Such a patent will then allow the patent-holder, not "ownership", but an exclusive monopoly to commercially exploit such a patent for up to 20 years.
This exclusion, it is argued, stifles medical research. However, patent-holders argue that it does not stifle, but rather encourages, initiative by providing the monetary means to invest in research and development. Such rights to acquire patents, however, have been criticised by the Nuffield Council on Bioethics, which in 2002, in a paper on the Ethics of Patenting DNA, recommended a very strict application of patent-law rules over DNA. The answer to the question "Can your genes be owned?" would, taking into account the current legal status quo, be No.
However, human tissue, genes and DNA can all be controlled by various parties, and the largest degree of control lies with the donee. It is the mechanism by which such control is exercised that will dictate in whose balance such control will lie in the future.
Asim A. Sheikh BA LlM is a barrister and lecturer in legal medicine in the Faculty of Medicine in UCD. He is also a member of the Irish Council for Bioethics and author of the report Genetic Research and Human Biological Samples: The Legal and Ethical Considerations