Cloned Organs: A Property Dispute Between the Giver and Receiver

Cloned Organs: A Property Dispute Between the Giver and Receiver

Over the past recent decades, technological advances have led to the increased knowledge in the biotechnology field. In June 26, 2000, scientists involved in the Human Genome Project announced their success in mapping the human genome and this event marked a milestone in revolutionizing modern medicine and biotechnology. By conducting research on genes, scientists were able to find cures and create effective medicines for rare diseases. However, this opened up new ethical and controversial questions that are currently being debated: should genetic materials such as genes and tissues be considered property? Furthermore, should people retain property rights over these materials? There have been court cases that have tried to resolve these issues through legal principles, but they produced little clarity and consensus on the ethics of owning genetic material.

The ownership issue pertains not only to genetic material, but also to cloned genetic material. Therapeutic cloning is a procedure in development that could regenerate human cells, tissues, or organs. With the shortage of organs available for transplant exponentially growing, the introduction of cloned organs will mark another milestone in biotechnology. However, cloned organs raises greater ethical issues, such as the patenting of cloned organs as well as the property interest of people who supply their tissues for cloning. Who will have the right to own cloned organs? The ethical challenges regarding the ownership of cloned organs will be measured by legal principles, but more importantly the five principles of bodily rights.

        First of all, how feasible is the cloning of organs? Currently, biotechnology is not advanced enough to create a complete organ from a cell. However, research in therapeutic cloning looks promising. Pluripotent stem cells, which are used in the therapeutic cloning, can “potentially treat diseases in any body organ or tissue by replacing damaged and dysfunctional cells.” (Murnaghan) Scientists believe bone marrow will be the first human organ to be ever cloned. By “fusing cells from the patient with a denucleated egg cell, scientists can add chemicals to differentiate into the desired tissue, in this case bone marrow.” (Hilmert 371) Scientist can transform a cell into the desired tissue and the patient would be able to accept the resulting tissue without the risk of rejection. It is certain that further advancement in therapeutic cloning will make the cloning of organs achievable.

        In order to make the cloning of organs possible, we must first consider the legal aspects of property rights on cloned material and this can be addressed in respect to genetic material. There are usually two parties involved in dealing with the ownership of genetic material: the donor of the genetic material and the scientist who uses the material for research. Several court cases as well as established laws such as the Uniform Implication Gift Act shed some clarity on this issue. One of the most famous cases dealing with the ownership of genetic material is Moore v. Regents of the University of California. This is the summary of the case given by Lawnix:

Moore (P) was treated for hairy cell leukemia by Golde (D) at UCLA Medical Center. Test results revealed that Moore’s cells would be useful for genetic research and Golde removed blood, bone marrow, Moore’s spleen, and other tissues. Golde did not inform Moore of his plans to use the cells for research. After Moore underwent surgery Golde falsely told him that he needed follow up treatment and further tests which must be conducted at the UCLA Medical Center. Golde took blood and tissue samples from Moore on several occasions over a seven year period and retained Moore’s spleen for research without Moore’s knowledge or consent. (Moore v. Regents)

The researcher patented the cell line that was established through these samples, which is estimated to be worth over 3 billion dollars. Moore sued the Golde for a claim of conversion, stating that his “blood and tissues and the cell line developed from them were his tangible personal property.” (Moore v. Regents) However, the court ultimately dismissed the case affirming that Moore did not have property interest in the cell line and there was no expectation of him maintaining ownership of the material after the removal. The product that resulted from Moore’s cells was the work of the researcher and therefore it was rightfully the researcher’s property. The case concluded that the property right to genetic material is given to the person who puts in effort to create a product out of it and not the donor of the material.  This could have the same implication for those who would like to remove their genetic material for the sake of advancing cloning technology.

        Although Moore v. Regents favors the researchers in terms of property rights of genetic material, the Uniform Anatomical Gift Act (UAGA) says otherwise. UAGA is a legislation that defines the procedure of donating a body part to a recipient. Sections 7153 and 7150 mention the flowing:

(§ 7153, subd. (a)(1)), expressly provides that such a gift "may be made to a designated donee or without designating a donee" (§ 7153, subd. (b)) and also that the donor may make such a gift "for any of the purposes [specified in the statute or may] limit an anatomical gift to one or more of those purposes...." (§ 7150.5, subd. (a).) (Uniform Anatomical Gift Act)

The act recognizes that the donor of the body part, not the person or hospital that receives the part, has the authority to decide the particular use of the part. This concept could apply to not only for donation purposes, but also transplantation. Thus, if the donor of a genetic material specifies its use, it can be implied that the donor has property interest in the resulting product even after its removal.

        The case and the act have contradictory conclusions on the property rights of genetic material. Moore v. Regents of University of California affirms the right of property to researchers, while the Uniform Anatomical Gift Act affirms the right to donors. Also, because the issue revolves around cloned genetic material, it is almost impossible to determine the fine line of right and wrong. Therefore, we realize that the government can’t create law that could indefinitely define such rights. In order to address the ownership of cloned organs more clearly, ethical principles must be considered.

        When determining property rights in terms of ethics, John Locke’s natural rights theory comes to mind. In Two Treatises of Government, Locke states “Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” (Ch. 16 § 27) A person by nature has a property interest in “his own Person,” which could also mean his body. Also, a person by nature is entitled to property from “the work of his Hands;” this means that if a person puts value into something by adding labor, it becomes his property. So how can Locke’s theory be used to clarify property rights of cloned organs? Unfortunately, it can’t due to a paradox. When one donates his tissue to make a cloned organ, the researcher is putting labor into creating the product. The donor should have property rights to the organ as it came from “his own Person.” However, the researcher should also have property rights to the organ as “the work of his Hands” was used in creating the product. Although Locke’s theory can be used to determine the property rights of non-human objects such as land, it cannot be used to determine the ownership of cloned organs.

         If John Locke’s natural rights theory is not applicable to measure this issue, what other ethical principles are there? Deriving from the works of John Locke, Felix Cohen, Tony Honoré and others, philosopher Sven Ove Hansson proposed five moral principles of bodily rights that could help determine the ownership of cloned organs. These moral principles follow the social constructivist theory of ownership, which stipulates that “ownership is the result of a series of social choices and events that could well have been different. According to this view, society is free to choose the system of property rights that best promotes social goods, such as justice and economic productivity.” (Hansson 210) The five moral principles of bodily rights are the following: