Unless you have abandoned your Facebook account for the past month, you may be aware of the viral footage of a nurse being arrested in Utah, USA. She was arrested after refusing to provide a detective with a blood sample of an unconscious patient without qor formal consent. She was released without charge.
This situation raises an important question – To what extent are your body tissues your property according to Australian law?
The question of proprietary rights over human tissue is a relatively new topic with the advancements in technology and the joint commercialisation of human tissue. The increasing prevalence of tissue banks and human reproductive technology brings with it the legal issue of property rights over your own tissue.
Tissues Obtained Without Your Consent
If the bodily tissue has been obtained without your consent, this may constitute an assault by means of unlawful contact. These situations would concern the laws that protect your bodily integrity.
Tissues Obtained With Your Consent
To what extent could you exert your property rights over the tissues you have donated with consent?
The law promotes the consensual use of tissue samples. According to the Human Tissue Act 1985 (NSW), you can legally donate regenerative or non-regenerative tissue. However, your consent to donate must be for a specific purpose, namely for transplantation, therapeutic, medical or scientific purposes. Donated tissues that are subsequently processed and sold for any of those purposes are legal.
You cannot exert property rights over validly donated tissues:
- There is no legislative offence preventing the mistreatment or destruction of validly donated tissue.
- You cannot enter into a contract or agreement under which tissues are traded.
Example: US case
In the US, John Moore was being treated for leukaemia. He consented to the removal of his spleen for the procedure which was later made into a cell line for financial gain. Mr. Moore argued that he did not provide consent for the use of his spleen for commercial purposes and should be entitled to the profits accrued. The court held that he cannot exert property rights over his spleen given that he provided consent to its removal for medical purposes. Hence Mr. Moore was unsuccessful in claiming the profits gained from the cell line.
