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

1995, The San Diego law review

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,