Propertisation and Commercialisation: On Controlling the Uses of Human Biomaterials

AuthorMuireann Quigley
DOIhttp://doi.org/10.1111/1468-2230.12086
Publication Date01 Sep 2014
ARTICLES
Propertisation and Commercialisation: On Controlling
the Uses of Human Biomaterials
Muireann Quigley*
Third parties, such as researchers and biotech companies, can and do legally acquire property
rights in biomaterials. They are protected by the law of property in their use of these. Recent
legal decisions have seen a move towards the tentative explicit recognition of some property
rights in biomaterials vesting in the source of the materials. However, this recognition has not
included income rights. This article discusses the interests that parties have in controlling the
uses of biomaterials and the commercial interests that stem from those uses. The article argues
that concerns regarding the allocation of property rights to the source generally elide property
rights in biomaterials with the right to derive income from the transfer of those materials.
Propertisation does not analytically entail commercialisation. It is therefore questionable
whether it is reasonable to protect third parties’ income rights, while excluding the source of
the biomaterials from such protection.
INTRODUCTION
When we say that a resource falls within the domain governed by property
relations we are acknowledging a particular way of controlling that resource.
This recognition consequently brings such resources within the purview and
protections of existing property institutions. Those who argue that persons
should be seen as having property in their separated biomaterials think that
individuals ought to have this type of control, as well as any consequent
protections in their exercise of that control. One set of responses to this takes
the form of moral objections to the commercialisation and commodification of
organs and tissues. Yet such objections do not go hand in hand with oppo-
sition to the donation of those materials, even though donation arguably
involves exercising the rights of use and control that are characteristic of prop-
erty. In this article I examine conflicts which have arisen with regards to
biomaterials in order to illuminate the association between property and
control, and that which is presumed to exist between property and sale. While
it can be difficult to disentangle property from market transactions, objections
*Senior Lecturer in Biomedical Ethics and Law, Centre for Ethics in Medicine, University of Bristol.
I would like to thank Sara Fovargue, Imogen Goold, Suzanne Ost, Nicolette Priaulx, Jesse Wall, and
the two anonymous reviewers for their comments on earlier drafts of this article. I would also like to
thank those at the SCRIPT Conference: Law and Transformation 2012, the Society of Legal Scholars
2012 Conference, and Translational Bodies: Ethical, Legal and Social Issues Conference 2014 who
have given me invaluable comments on it.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(5) MLR 677–702
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
to commercialisation need to be distinguished from objections to property
per se. Drawing on the work of John Christman, James W. Harris, and James
Penner, I argue that objections to property in biomaterials generally conflate
powers of control, which may include the power to transfer, with the right to
derive income from such transfers. Recognising this allows us to admit prop-
erty in bodily materials, and thus the accompanying protections and control,
without necessarily having to permit the source to trade their biomaterials on
the market. Nevertheless, as we will see, a market in tissue commodities
already exists. Given this, I question the selective moral disquiet that exists
regarding the effect of the commercialisation of human biomaterials by their
source
PROPERTY AND BIOVALUE IN HUMAN BIOMATERIALS
Advancing biotechnology has fundamentally altered the way we view the human
body and its parts and products. We have moved from being simply the
end-users of medicine and research to each of us being a potential purveyor of
it. This is due, as Margaret Brazier argues, to ‘the diverse means by which we
ourselves may be used as medicine’.1Human biological materials can be used to
treat illness and disease.2These include blood and blood products for transfu-
sions, organs for transplantation, and gametes and embryos for in vitro fertilisation
(IVF) and pre-implantation genetic diagnosis (PGD). PGD coupled with
Human Leukocyte Antigen (HLA) typing literally allows the creation of a child
whose umbilical cord blood can be life-saving for their brother or sister. Stem
cells represent another avenue of potentially life-altering, if not life-saving,
human medicine, and may yield treatments for a huge variety of diseases. There
is a burgeoning new class of products which draw on tissue-engineering exper-
tise, combining human biomaterials with artificial scaffolds; for example, carti-
lage for repairing joints,3bladders grown from patient’s own cells,4and biohybrid
tracheas for transplantation.5Furthermore, there are less media-worthy and
exciting uses of human biomaterials, such as those used in research into the
aetiology, pathology, and treatment of disease. Cells and tissues are also used for
1 M. Brazier, ‘Human(s) as Medicine(s)’ in S. McLean (ed), First Do No Harm (Aldershot: Ashgate
Publishing Ltd, 2006) 187, 188.
2 For a comprehensive overview of the use of human biomaterials see Nuffield Council on
Bioethics, Human Bodies: Donation for Medicine and Research (London: Nuffield Council on
Bioethics, 2011) ch 1.
3 T. Simonite, ‘Lab-grown Cartilage Fixes Damaged Knees’ New Scientist 5 July 2006 at http://
www.newscientist.com/article/dn9483-labgrown-cartilage-fixes-damaged-knees.html (unless
otherwise stated, all URLs last accessed 11 April 2014).
4 R. Khamsi, ‘Bio-engineered Bladders Successful in Patients’ New Scientist 4 April 2006 at http://
www.newscientist.com/article/dn8939-bioengineered-bladders-successful-in-patients.html.
5 A. Coghlan, ‘Man Receives World’s First Synthetic Windpipe’ New Scientist 8 July 2011
at http://www.newscientist.com/article/dn20671-man-receives-worlds-first-synthetic-windpipe
.html.
On Controlling the Uses of Human Biomaterials
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
678 (2014) 77(5) MLR 677–702

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