Who Owns You? Property Rights in the Human Body

Who Owns You?  Property Rights in the Human Body

by Paul Filon

Patent Attorney

Moxon & Spriegel, LLC

www.mspatentlaw.com

Introduction

            Who owns your body?  The most obvious response is that you do.  However, property law does not seem to provide a well-defined interest in one’s living body.  At best, it may be said that a quasi property right may exist that provides for limited rights and duties.  Similarly, bodies of the deceased have no property rights at common law.  In re Estate of Medlen, 286 Ill. App.3d 860, 222 Ill. Dec. 220, 677 N.E.2d 33 (2d Dist. 1977); Dampier v. Wayne County, 233 Mich. App. 714, 592 N.W. 2d 809 (1999); Tinsley v. Dudley, 915 S.W.2d 806 (Tenn. Ct. App. 1995).  In addition to a lack of protection under property law, the law of wills and property descent do not provide real protection for the dead.  Matter of Moyer’s Estate, 577 P.2d 108 (Utah 1978).  Federal and state law treats these issues peripherally with statutes dealing with organ transplant and anatomical gifts.[1]

            The more likely approach to provide protection is to view rights in your body as a constitutionally protected right of privacy under the Fourth and Fifth Amendments.[2]  Additionally, Federal privacy statutes impose other requirements such as consent prior to the dissemination of personal medical information.[3]  This discussion will review the legal perspective in ownership of the human body, its effects on the involved individual, and the effects on others.  Further analysis will determine who else would want this information.  Finally, a debate of the body’s utility and value will take into account the costs to the individual and society as a whole.

The Law

            Despite a common assumption that our bodies belong to us, finding expressly defined law on the subject is difficult.  Property law traditionally does not view the human body as property.  However, courts have treated body parts separated without permission, such as hair and urine, as property in the criminal law of theft or battery.  R v. Herbert (1961) 25 J.C.L. 163; R v. Welsh [1974] R.T.R. 478.  Additionally courts have found that a decedent’s preserved sperm has a property interest because the donor has the authority to use it for reproduction.  Hecht v. Superior Court, 16 Cal. App.4th 836, 20 Cal. Rptr. 2d 275 (2d Dist. 1993).  Similarly, courts have considered parts of dead bodies to be property in some circumstances.  For example, if one applies skill in preserving a body for exhibition, it may be considered a property right.  [1998] 3 All E.R. 714 at 749.[4]  It would be hard to believe that Gunther von Hagens’ Body Worlds exhibit does not have a property right of some kind.

            The property rights model would protect an individual’s ability to profit from himself.  This would further the common assumption that most people have in that they own their own bodies and medical information.  It could also possibly force businesses to pay for certain social costs that accrue, such as medical care for the uninsured, instead of the current reliance on individual or government coverage.  However, the property model has certain limitations.  The human body is not readily transferable (at least legally) nor is it easily divisible.  It is hard to define these rights.  To do so would likely create a new form of intellectual property that does not fit into the current model.  It would be nothing like patent, copyright, or trademark law as it exists today.  Finally, the issue of consent will be a formidable obstacle in defining rights.

            The other major approach to this issue is the view of a right to privacy in one’s body.  While the Constitution may not explicitly provide for a right of privacy, substantive due process analysis has come to interpret a right of privacy as being included in one’s fundamental rights such as life, liberty, and property.[5]  The United States Supreme Court has defined this right through numerous cases.  The Court has enumerated the following rights: The right for parents to raise their children as they see fit, Meyer v. Nebraska, 262 U.S. 390 (1923), prohibitions on restrictions on marriage, Zablocki v. Redhail, 434 U.S. 374 (1978), child custody determination, Michael H v. Gerald D, 491 U.S. 110 (1989), prohibitions on state law criminalizing provisions of contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), and the prevention of government sterilization of criminals, Skinner v. Oklahoma, 316 U.S. 535 (1942).  More significantly, the protection of a woman’s right to choose to terminate her pregnancy under certain circumstances was created in Roe v. Wade, 410 U.S. 113 (1973).  This right was later enhanced by Casey v. Planned Parenthood, which provided that the “privacy formula” includes protecting certain “intimate and personal choices . . . central to personal dignity and autonomy.”  505 U.S. 833 (1992).  These cases provide an outline of how extensive the constitutional definition of privacy has become.

            There is also a constitutional interest for the next of kin in the body of a dead relative.[6]  In Cruzan v. Director, the Court decided, “every adult of sound mind can determine what to do with his own body” limited by the state’s “legitimate safeguard of the personal element of this choice.”  497 U.S. 261 (1990).  However, the government draws a line at allowing legalized suicide.  There is no fundamental constitutional right to assisted suicide.  Washington v. Glucksburg, 521 U.S. 702 (1997).  The Court has determined that privacy is a fundamental constitutional right and protects it to the highest degree by requiring a strict scrutiny analysis, the most severe constitutional analysis, to be satisfied before it will allow the government to interfere in these matters.

            The Fourth Amendment, on the other hand, approaches the right as a prohibition against unreasonable government search or seizure.[7]  It protects the right to be secure in one’s person.[8]  This seems more in line with property or tort law involving theft and battery affecting the government as opposed to citizens.  Next, the Fourteenth Amendment simply extends the due process prohibitions granted by the Fifth Amendment affecting the federal government to apply to state governments.[9]  

            Other federal law that applies to this issue is statutory in nature.  The Uniform Anatomical Gift Act of 1968, last revised in 2007, allows a person to donate his body to a hospital, doctor, medical school, or body bank for either research or transplant.[10]  Amendments and the versions of the Act adopted by the States, have relaxed the requirements of the original Act to allow these donations either by will or simply by a signed donor card.  Most states no longer even require attestation.  Many states simply allow a driver’s license to provide this notification of intent to donate. 

            Conversely, the National Organ Transplant Act places limitations on what one can do with one’s own body.[11]  It expressly prohibits the sale of human organs.[12]  Other countries have similar laws prohibiting these transactions.[13]  The Health Insurance Portability and Accountability Act of 1996 (HIPPA) provides a different protection.[14]  HIPPA attempts to balance privacy with efficiency and information sharing.  It provides patients the right to a copy of their medical records, to consent prior to disclosure of that information, and the right to refuse to disclose certain personal information.  It also provides for federal reporting guidelines and is an attempt to reform the health care industry.  A major protection created by HIPPA is a privacy rule.  A patient must give consent in many situations prior to the disclosure of personal medical information.  

            Theories of recovery under these laws are varied.  Injunctions or compensatory damages are typical remedies for the violation of constitutional issues or federal statutes.  Various statutes such as HIPPA, which provides for both remedies, have them enumerated in the specific language of the statute.  Medical malpractice, civil battery, or the breach of various duties or relationships usually lead to compensatory and possible punitive damages under the tort laws of the individual states.  Finally, criminal law provides for criminal penalties under the various state statutes as well.

            It seems apparent that while numerous legal provisions exist to deal with these issues, there is no easy uniform guide to answer such questions.  No single existing body of law, be it property, tort, wills, or constitutional, clearly define all of the parameters and give a clear definition of all of one’s legal rights.  Therefore, in the determination of who actually owns you or you medical information, it is necessary to take a broad approach that analyses all of the relevant law.

What is of value and who wants what?

            Personal medical information is highly sought after.  This type of resource drives many industries ranging from the start up biotech company, to pharmaceutical corporations, to the insurance industry.  Moreover, although most people probably assume that they own this information, the traditional American view does not permit ownership.[15]  At best, there may be an individual interest against the wrongful disclosure or employ of your medical information.[16]

            People who have been subject to the practice of medicine are usually the only source of this type of data.  It provides a wealth of knowledge to those who know how to extract the value properly.  The ability to initiate and continue beneficial medical research would be crippled, if not destroyed, if this information did not exist or was not accessible at a reasonable cost.  The government has seen the importance this research and acknowledged it by subsidizing it in both the public and private sectors.  The development of new medicines would not be possible without the ability to test them on human subjects and to analyze the data created by those tests to make the process safer and more efficient.  Likewise, new medical procedures require statistics from human trials to determine if they are improvements on the previous generations of techniques.  Medical device technologies, like pharmaceutical development, require this type of information to evolve.

            One could stop the analysis here and still make a strong case for the need for this data.  However, the information’s use is not limited merely to the medical industries.  For example, these resources can also benefit the insurance industry.  Access to these statistics can help make the risks of death and disability be economically and efficiently spread across large populations, thereby benefiting many.  Advertisers can also use the information to market products specifically to those who are most likely to need or want those products saving overall costs and annoyance to those who do not.  Likewise, the food industries could tailor their products to better suit individuals or groups with special needs, limitations, or tastes.  Even creditors could use the data to manage their risks in the most efficient manor.

            Current technology[17] has made it cheap and easy to utilize these resources to their fullest potential.  The computer power existing today makes seemingly impossible tasks in data analysis a reality.  Software and computer algorithms have unlocked the potential of the true worth of this information.  It seems almost wasteful not to extract the most value that we can out of these raw materials. 

            Society as a whole could benefit from the use of information in these ways.  Better safer products, lower costs, and a better quality of life are just a few of the potential advantages.  However, it is important to note that the unfettered use of this information without limit or restriction could have intentional or inadvertent damaging consequences as well.  Individuals with bad information, such as disease or imperfect genes, could easily be subject to discrimination in a completely open information environment.

            Along with personal medical information, there is a significant need for living body parts in the form of tissue, blood, organs, and research subjects.  Currently there are no acceptable substitutes for these types of products.  The organ transplant system is at its simplest, a supply/demand scheme with demand significantly exceeding the supply.  In the U.S., the National Organ Transplant Act prohibits the sale of human organs.[18]  The current government endorses a policy of fairness to the neediest.

            However, the restriction does not extend to anything that comes from the body.  For example, an individual may donate blood to an organization such as the Red Cross, or he may sell it to private organizations for compensation.  The only limitation is that if you sell your blood, but then need a transfusion later in life, you may not receive the donated blood of others without payment.  Similarly, public and private entities routinely compensate research subjects.  Universities in particular recognize the value in paying students a small fee for the use of their bodies and the data obtained.  Other popular compensations are free medical care or pharmaceuticals.

            Until we are able to grow organs in a laboratory, as opposed to human harvesting, there will continue to be great demand for these products.  A temporary solution may lie in how we treat organ donation.  Under the Uniform Anatomical Gift Act, the presumption is that a deceased person has not consented to organ donation unless he affirmatively complied with the statutory requirements.[19]  Simply changing this presumption to favor the preservation of life by routinely removing organs from the deceased, unless the decedent or next of kin expressly objects, could alleviate much of this deficit.[20] 

            Other countries such as Spain, Italy, and Denmark have this presumption and over 90% of their populations end up consenting to organ donation.[21]  It seems likely that many U.S. citizens would consent to this practice, but merely do not comply with the statutory requirements because they require people to take an affirmative action.  This wasteful practice should be brought to an end and society should be allowed to receive the ultimate benefit of this lost value.

            Deoxyribo nucleic acid (DNA) is also an extremely valuable substance.  DNA holds the life code of our very existence.  Unlocking its message may provide an unlimited potential to repair or improve the human body or extend its life.  There are many obvious benefits to the medical community and individuals.  However, there are hidden advantages as well.  Families are almost statistically genetically identical.  People can profit from the knowledge of a sibling, cousin, or grandparent’s health problem or treatment specifically engineered for them.  Genetic information can also be relevant to the entire population.  For example, the genetic difference between humans and chimpanzees is only approximately 5%.[22]  Research into the genetic code for diseases such as muscular sclerosis or tay-sachs disease are not individual specific.  This knowledge could make a positive impact on the lives of many who are suffering from genetically identical diseases.

            Even the human corpse can provide extended value after death.  Purely from a raw material perspective, the human body’s true worth is probably less than five dollars.[23]  Nitrogen, water, and other elements and molecules combine to create something greater than merely the sum of their parts.  Examples of how to extract this beneficial value include; autopsies to provide medical data, research to improve quality of life, and educational value for instructing the next generation of medical professionals.  It is unimaginable that a physician could be as proficient in his knowledge of the human body merely from observing drawings or x-rays.

            An example of an even more novel use is Gunter von Hagens’ “Body Worlds” exhibits.  He turns the human corpse into a museum quality exhibit through the process of plasticization.  The value is apparent to anyone viewing the exhibit.  From an educational aspect, the value is enormous.  He has dissected and colorized various body systems and organs so that viewing and learning is enhanced.  The unique worth extracted from these exhibits however, is the entertainment value.  People unlikely to use the information to benefit society tangibly pay a fee to view the exhibit anyway.  This fresh approach is just one of the possibilities that exist for extracting value out of material that is typically buried or destroyed.

Who should benefit?

            In reality, the more we can extract value from human capital, the more everyone benefits.  The individual surely deserves some compensation for providing the material and raw data.  In most cases, one must pay a medical professional a fee for a medical service.  This information is unique and not available from other sources.  Therefore, in a supply and demand model, the individual holds all of the supply, and the demand from a variety of sources is great.  However, the individual rarely realizes an actual monetary profit from these products.

            There are many ways to obtain this information from individuals without compensation.  Simple consent will allow one in possession of the value to disseminate it to those who can use it most productively.  Physicians consider a patient’s chart to be work product and may look to copyright law for protection.  Altruism can motivate people to provide the data for the benefit of society.

            Unlike individuals, physicians and other health care institutions are in good positions to realize the rewards.  They provide the skill, expertise, and resources to extract the useful material and information.  They know what to look for and what to do with these products.  Their expertise will extract a significant percentage of the value from these raw materials.  These industries have invested significant capital into the education and technologies that can best extract and utilize these assets.  Copyright law may protect the medical chart as work product if it is in a “tangible medium of expression” even if unpublished.[24]

            However, there is a significant obstacle in the current legal system regarding health care information that may limit a physician or health care institution’s access to these resources.  U.S. law requires that a patient must consent in most cases to the release of personal medical information or to the performance of procedures or tests that will provide data.[25]  Without this consent, the law forces doctors and hospitals to waste these resources.

            Finally, society as a whole can benefit from this value.  The overall improvement in the quality of life and increased lifespan are substantial rewards.  Additionally, bodies are an integrated part of society at the macro level.  Constant interaction with the environment and each other creates an almost greater living macro system.  Our bodies are constantly changing while consuming and providing raw materials to and from the environment in which we live.[26]  Even our human genome is not truly individual specific.  It is, with minor exceptions, virtually statistically identical to all other humans.  Therefore, to utilize our value most efficiently, we should take advantage of any industry or process that can improve society as a whole.

How to extract value.

            Should the government step into such a controversial area?  The government currently may take real property by eminent domain for a proper purpose with compensation, so why not human property if there is payment.[27]  Similarly, the government has mandatory federal reporting requirements for dangerous health threats to the general population despite a lack of consent.[28]  Constitutional strict scrutiny analysis will not protect an individual’s privacy against an emergent, compelling public health threat.  The information obtained could prevent the spread of potentially catastrophic infectious disease epidemics.  Quick access to the data could save many lives at arguably little cost to the individual. 

            If used prudently for the greater good, this application of use benefits everyone at the macro level.  Laws prohibiting the sale of organs already promote a government purpose of leveling the playing field and providing the organ to the most deserving (the sickest).  However, there are inherent dangers in this model.  First is the possibility of discrimination and unfair treatment.  The constitutional protection of one’s privacy would have the potential for exploitation by the unscrupulous.  In addition, the government bureaucracy could hurt the overall quality of health care.  The government is not in the general business of providing these services.  Other countries, such as Canada and Great Brittan, have had varying levels of success with nationalized health care systems.

            However, a balance may be possible through compromise.  Subsidization of a private health care system with public monies may provide universal protection with little additional expense if the government would cooperate with private industry.  For example, instead of reimbursing expensive hospital emergency department visits, wellness programs, or other sub acute options would be much more cost effective.  The present system wastes considerable recourses.

            Another possible solution may exist with privatization.  Through a compromise of obtaining free access to personal medical information, private industry could subsidize medical care to individuals that provide the data.  Drug companies could supply discounted medicine, doctors could offer low cost examinations, and institutions could provide economical facilities.  A lower tax burden would be the likely result of these measures.  This would not end government subsidy, but a significant decrease is likely in this scenario, which frees up funds for other social needs. 

            Commercializing this process would accelerate research, which would lead to innovation.  This innovation would benefit society and individuals alike.  Individual benefits like blood substitutes and gene-based therapies advance a greater overall societal interest in the long term.  These progressions encourage job growth in science and technology disciplines, which should have a trickle down effect on the overall economy.  Existing companies would have opportunities to grow and cultivate new industries.  There will be a future need for an advocate or facilitator to manage the process for people.  No existing program currently exists that can effectively facilitate the transition of the raw information to those who need it. 

            There are several approaches to the most effective management of these assets.  From an individual ownership perspective, it will be difficult to extract the most value.  Integration is not a viable option for these resources.  No individual by himself has the financial and scientific know how along with the time and capital to commercialize this endeavor by himself.  Orchestration, for similar reasons, is unlikely as well.  This leaves licensing, which is the only approach that yields any bona fide benefit to the individual.

            There are several licensing options available to an individual.  Licensing to a small company or single doctor is possible, but unlikely to extract the maximum value.  Similarly, major health care players such as pharmaceutical companies, universities, or the government probably provide better compensation, but still leave some value unused.  Likewise, major players not in the health care industries such as insurers, creditors and other advertisers, leave unused value.  The best approach is to create a new industry to manage this intellectual property.  This industry could maximum any benefit that is extractable, with one entity marketing the resources to all who want it and are willing to provide compensation to the individual from where the data came.

            Physicians and health care organizations are also a source of this material.  As it was for individuals, integration is unlikely due to a lack of time and expertise in the nonscientific areas of this business.  Orchestration is possible for bigger entities, but this still will not provide the most value.  Licensing is again the best process to provide the biggest benefit.  Problems with this approach include consent issues.  Current law would require significant revision to make this work.  Otherwise the data is still tied to the consent of each individual which hurts the efficiency of the over all system, if not effectively crippling it.  Additionally, the individual gains nothing from this process.  Providing incentives such as free examinations or other care would alleviate this issue. 

            Private corporations would be in a better position to use these resources most efficiently.  Large corporations have the resources to integrate the data, but that still does not provide the maximum value.  If the companies took an overall approach and additionally orchestrated or licensed when it made economic sense, they could obtain more value.  Unfortunately, few corporations have the required resources and vision to utilize these assets to their maximum potential.  They do however have the wealth to compensate the individual for their product.

            The government has the resources, but it too is not in the best position to manage this information.  It, like private industry, is capable of integration, orchestration, and licensing, but bureaucracy is an inefficient process.  In a field where the value lies in speed in processing the data, that value would be lost.  Additionally, there is still an issue of how to compensate the individual from where the data came.  Subsidization would be the likely avenue.  The bigger problem would be the big brother perception by the public in the possible misuse of their privacy.

Conclusions

            Extracting the most value for these products has no apparent easy solution.  Government intervention is a hot button political issue affecting a privacy right in which most Americans have come to rely.  Large corporations or major health care institutions are in the best position to obtain the most value from these assets.  They have the resources to exploit and the access to the products.  They are also able to compensate individuals in some form for this information. 

            Although integration and orchestration are required to gain value, the maximum value will not be obtainable with out licensing.  A combination of all three approaches is necessary to extract most efficiently the true worth of these assets.  Consent is a big issue that stands in the way of the efficient extraction of the value.  The government must modify current privacy laws or provide a significant incentive program to overcome these hurdles.  However, the best approach lies in creating a new industry to manage the entire process.  This intermediary would be able to market an individual’s products in the most efficient manor to all who can benefit from them.  This system would extract the most value from these limited and unique resources. 

 

 


[1] Each state has enacted a version of the Uniform Federal Anatomical Gift Act (1968, amend. 1987, 2006); National Organ Transplant Act, 42 U.S.C. § 274e (2004).

[2] U.S. Const. amend. IV, V

[3] Health Insurance Portability and Accountability Act (HIPPA) (1996), codified in Titles 18, 29, and 42.

[4] An English case involving the theft of dissected body parts from a medical school.

[5] U.S. Const. amend. V.

[6] See Am. Jur. 2d dead bodies § 3

[7] U.S. Const. amend. IV.

[8] Id.

[9] U.S. Const. amend. V, XIV.

[10] See FN 1 supra, Adopted by every state in various revisions.

[11] 42 U.S.C. § 274e (2004).

[12] Id.

[13] The Human Organ Transplants Act 1989, England

[14] HIPPA, see FN 3 supra.

[15] See, e.g., Feist Pub., Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (copyright law does not provide an elite right so that a constitutional purpose of knowledge promotion is achieved).

[16] Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973) (doctor was wrong to provide medical information to a potential employer).

[17] Examples: the World Wide Web, data processing systems, file sharing systems

[18] 42 U.S.C. § 274e (2004), see FN 1 supra

[19] See FN 1 supra, Each State has adopted its own version of the Act with slight differences in the statutory requirements.

[20] See Jesse Dukenminier, Supplying Organs for Transplantation, 68 Mich. L. Rev. 811 (1970).

[21] Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1192 (2003).  (The presumption is rebuttable and people have the option to opt out.  Never the less, the vast majority still allow their organs to be harvested for the benefit of others.).

[22] R.J. Britten, ‘Divergence Between Samples of Chimpanzee and Human DNA Sequences Is 5%, Counting Indels’ (2002) 99 Proceedings of the National Academy of Sciences USA 13633.

[23] Indiana School of Medicine, Sound Medicine Quiz online at http:www.soundmedicine.iu.edu/archive/2003/quiz/humanWorth.html, last viewed 11/1/2007 (citing prices approximated in 2003).

[24] Copyright Act, as amended 1976, 17 U.S.C. § 102(a).

[25] HIPPA, see FN 3 supra.

[26] Jonathan Herring, P. L. Chau, My Body, Your Body, Our Bodies, Med. Law Rev. 15, 34 (2007). Oxford U. Press (2007).

[27] Kelo v. City of New London, 546 U.S. 807 (2005).

[28] The Centers for Disease Control and Prevention (CDC) is a federally created agency that monitors public health threats, and has the authority to obtain necessary private health information, through mandatory reporting requirements, to protect the public.

Advertisements

Leave a comment

Filed under Intellectual Property, intellectual property rights, Invention, Inventions, Moxon & Spriegel, Patent Attorney, Paul Filon, Property Rights, Spriegel

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s