Owning our bodies: an examination of property law and biotechnology (original) (raw)

1995, The San Diego law review

Abstract

specializing in technology law and has S.J.D. and LL.M. degrees from the University of Michigan Law School. The author gratefully acknowledges the financial assistance of the Social Sciences and Humanities Research Council of Canada, the Mackenzie King Foundation, and the University of Michigan with respect to the research and preparation of this Article. The author wishes to thank Tory Tory DesLauriers & Binnington for the use of their facilities in writing this Article. This Article was written in partial fulfillment of the requirements for the grant of S.J.D. at the University of Michigan Law School. The author particularly wishes to thank David Foulds, who graciously provided editorial and research assistance and undertook the arduous task of extracting this Article from the author's thesis. 1. W.E. BURGHARDT Du Bors, THE SOULS OF BLACK FOLKS 126 (Penguin Books 1982) (1903). I. THE NATURE OF PROPERTY DISCOURSE Researchers and those arguing on their behalf commonly express their assertions of control over human biological materials in terms of property law. 13 Property, whether in the form of common-law property, a patent right, or a trade secret, offers researchers a significant degree of control over the subsequent use of their discoveries and the ability to substantially profit from these discoveries. Property law is, however, imbued with certain attributes that make its application to discoveries in distributed on the basis of one's ability to pay. This point is raised simply to point out that in many countries, including Canada, health care is viewed as a merit good. Id 11. MICHAEL WALZER, SPHERES OF JUSTICE 86-91 (1983). The right to health care has been recognized internationally, in human rights instruments, see, e.g., Organization of American States: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 14, 1988, 28 l.L.M. 161, 164 (stating that everyone has a right to health, including primary health care), and through the provision of state health care in most western countries, see, e.g., MILTON I. ROEMER, NATIONAL HEALTH SYSTEMS OF THE WORLD: THE COUNTRIES (1991) (referring to Germany,

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References (47)

  1. Deoxyribonucleic acid (DNA) contains the genetic material for most life forms.
  2. In fact, human health care is the focus of most research and development in the biotechnology industry generally. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, OTA-BA-401, NEW DEVELOPMENTS IN BIOTECHNOLOGY: U.S. INVESTMENT IN BIOTECHNOLOGY-SUMMARY 3 (1988) [hereinafter U.S. INVESTMENT]. Approximate- ly half of all researchers in the health field use human tissues. OWNERSHIP OF HUMAN TISSUES AND CELLS, supra note 3, at 52. • 8. Lawrence K. Altman, Cancer Patients Aided by Vaccine, N.Y. TIMES, Oct. 22, 1992, at A18.
  3. See, e.g., Richard C. Mulligan, The Basic Science of Gene Therapy, 260 Sci. 926 (1993);
  4. Natalie Angier, Panel Permits Use of Genes in Treating Cystic Fibrosis, N.Y. TIMES, Dec. 4, 1992, at A28. See generally WILLS, supra note 2 (discussing the Human Genome Project, its origins, related technologies, and future applications).
  5. See ROBERT G. EVANS, STRAINED MERCY: THE ECONOMICS OF CANADIAN HEALTH CARE 63 (1984). The term "market good" refers to a good that ought to be 149. FREUND & McGUIRE, supra note 142, at 233-34.
  6. ZOLA, supra note 148, at 220.
  7. FREUND & McGUIRE, supra note 142, at 240, 243-44.
  8. Id. at 221, 225.
  9. Id. at 245. The authors stated, "[D]octors are socialized to view the nonbiophysical aspects [of disease] as 'fuzzy,' 'soft' facts that are ultimately irrelevant to their essential task." Id. 154. Id. at 255.
  10. RICHMAN, supra note 139, at 20-21; ZOLA, supra note 148, at 86-108; ILLICH, supra note 142, at 134; Meredith B. McGuire, Health and Spirituality as Contemporary Concerns, 527 ANNALS AM. ACAD. POL. & Soc. SCI. 144, 146 (1993);
  11. MARGARET READ, CULTURE, HEALTH, AND DISEASE 24 (1966).
  12. See, e.g., WILL WRIGHT, THE SOCIAL LOGIC OF HEALTH 112-13 (1982).
  13. FREUND & McGUIRE, supra note 142, at 185.
  14. See supra note 142 and accompanying text.
  15. OSCAR WILDE, THE PICTURE OF DoRIAN GRAY {Modern Library, 1992)
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  17. 51 Cal. 3d 120, 793 P.2d 479, 271 Cal. Rptr. 146 (1990), cert. denied, 499
  18. U.S. 936 (1991). The facts as outlined in the text are set out in Moore. Id at 125-28, 228. See MICHAEL STOCKER, PLURAL AND CONFLICTING VALUES 198 (1990).
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  20. TAYLOR, supra note 83, at 46-52.
  21. ANDERSON, supra note 229, at 6. 231. Id at 60.
  22. See MARTHA C. NUSSBAUM, THE FRAGILITY OF GoODNESS: LUCK AND ETHICS IN GREEK TRAGEDY AND PHILOSOPHY 295 (1986).
  23. See JOSEPH RAZ, THE MORALITY OF FREEDOM 325 (1986).
  24. ANDERSON, supra note 229, at 58, 70. 239. Id at 51.
  25. RAz, supra note 237, at 339.
  26. Id.; see also STOCKER, supra note 228, at 198.
  27. ANDERSON, supra note 229, at 47.
  28. See generally EVANS, supra note 10, at 71-73, 75-76; Ginsberg, supra note 191, at 6-7;
  29. Ethan A. Halm & Annetine C. Gelijns, An Introduction to the Changing Economics of Technological Innovation in Medicine, in THE CHANGING ECONOMICS OF MEDICAL TECHNOLOGY 1, 3-4 (Annetine C. Gelijns & Ethan A.Halm eds., 1991).
  30. Halm & Gelijns, supra note 245, at 3-4.
  31. EVANS, supra note 10, at 54; Ginsberg, supra note 191, at 6-7.
  32. EVANS, supra note 10, at 93.
  33. For example, does good health include the absence of stress, and if so, what kinds of stress? Does a broken heart constitute pain? 250. This form of valuation is called the human capital approach. See EVANS, supra note 10, at 252-55.
  34. The willingness-to-pay approach. Id at 255-57. 252. Id at 263-64. 253. Id at 252-55.
  35. H.P. Galler, The Willingness-To-Pay Approach: Caveats to Biased Application, in COSTS AND BENEFITS IN HEALTH AND PREVENTION: AN INIBRNATIONAL APPROACH TO PRIORITIES IN MEDICINE, supra note 191, at 35, 37-39. 255. EVANS, supra note 10, at 263-64.
  36. Radin, supra note 24, at 957, 972-73; see also WALDRON, supra note 265 (putting forth a similar self-development rationale for property).
  37. Radin, supra note 24, at 957. 268. Id. at 972-73.
  38. William H. Simon, Social-RepublicanProperty,38 UCLAL. REV. 1335, 1340- 41 (1991).
  39. Id. at 1341.
  40. WHITE, supra note 291, at 57-58.
  41. Radin, supra note 299, at 1877-84.
  42. See Vandevelde, supra note 18 ( discussing the development of property from being absolute dominion over things to being a relationship between people);
  43. Charles Donahue, Jr., The Future of the Concept of Property Predicatedjrom its Past, in NOMOS XXII, supra note 285, at 28 (examining property from its roots in Roman law to the twentieth century);
  44. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 (1977) (discussing the development of the conception of property from the late eighteenth century to the late nineteenth century). Although Horwitz's book has been criticized on several fronts, his basic thesis that the conception of property within the law changed in the nineteenth century seems to have been generally accepted. See, e.g., Robert W. Gordon, Critical Legal Histories,36 STAN. L. REV. 57, 96-98 (1984);
  45. JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY 319 (1990). But see Alan Watson, The Transformation of American Property Law: A Comparative Law Approach, 24 GA. L. REV. 163, 186-216 (1990).
  46. HORWITZ, supra note 303, at 31.
  47. NEDELSKY, supra note 303, at 243.