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CHAPTER 089

The Oxnard judge coughed in the chilly air as he handed the ruling to the assembled attorneys. Alex Burnet was there, along with Bob Koch and Albert Rodriguez.

“As you can see,” he said, “I have ruled that BioGen’s ownership of Mr. Burnet’s cells does not entitle them to take these cells from any individual, living or dead, including Mr. Burnet himself. Certainly the cells cannot be taken from members of his immediate or extended family. Any contrary ruling would conflict with the Thirteenth Amendment, forbidding slavery.

“Within the context of my ruling, I observe that this situation has arisen out of confusion from prior court rulings as to what constitutes ownership in a biological context. First is the notion that material removed from the body is ‘waste’ or ‘lost material,’ which is therefore unimportant to the person from whom it was removed. This view is false. If one considers a stillborn fetus, for example, even though it has left the mother’s body, we can well intuit that either the mother or other relatives might feel a strong attachment to the fetus, and wish to control its disposition, whether in burial, cremation, or to provide tissues for research or to help others. The notion that the hospital or the doctor may dispose of the fetus as they wish, merely because it is outside the body and therefore is ‘waste’ material, is clearly unreasonable and inhuman. A similar logic applies to Mr. Burnet’s cells. Even though they are removed from his body, he will rightly feel that they are still his. This is a natural and common human feeling. The feeling will not go away simply because the courts rule according to some other legal concept shoehorned in by analogy. You cannot banish human feelings by legal fiat. Yet this is precisely what the courts have tried to do.

“Some courts have decided tissue cases by considering the tissues to be trash. Some courts have considered the tissues to be research material akin to books in a library. Some courts consider the tissues to be abandoned property that can be disposed of automatically under certain circumstances, as rental lockers can be opened after a certain time and the contents of those lockers sold. Some courts have attempted to balance competing claims and have concluded that the claims of society to research trump the claims of the individual to ownership.

“Each of these analogies runs up against the stubborn fact of human nature. Our bodies are our individual property. In a sense, bodily ownership is the most fundamental kind of ownership we know. It is the core experience of our being. If the courts fail to acknowledge this fundamental notion, their rulings will be invalid, however correct they may seem within the logic of law.

“That is why when an individual donates tissue to a doctor for a research study, it is not the same as donating a book to a library. It never will be. If the doctor or his research institution wishes later to use that tissue for some other purpose, they should be required to obtain permission for this new use. And so on, indefinitely. If magazines can notify you when your subscription runs out, universities can notify you when they wish to use your tissues for a new purpose.

“We are told this is onerous to medical research. The reverse is true. If universities do not recognize that people retain a reasonable, and emotional, interest in their tissue in perpetuity, then people will not donate their tissues for research. They will sell them to corporations instead. And their lawyers will refine documents that forbid the universities to use so much as a blood test for any purpose at all, without negotiated payment. Patients are not naive and neither are their attorneys.

“The cost of medical research will increase astronomically if physicians and universities continue to act in a high-handed manner. The true social good, therefore, is to enact legislation that enables people to maintain disposition rights to their tissue, forever.

“We are told that a patient’s interest in his tissues, and his right to privacy, ends at death. That, too, is outmoded thinking that must change. Because the descendants of a dead person share his or her genes, their privacy is invaded if research is done, or if the genetic makeup of the dead person is published. The children of the dead person may lose their health insurance simply because contemporary laws do not reflect contemporary realities.

“But in the end, the Burnet case has gone awry as it has because of a profound and fundamental error by the courts. Issues of ownership will always be clouded when individuals are able to manufacture within their bodies what the court has ruled someone else owns. This is true of cell lines; it is true of genes, and of certain proteins. These things cannot reasonably be owned. It is a standing rule of law that our common heritage cannot be owned by any person. It is a standing rule that facts of nature cannot be owned. Yet for more than two decades, legal rulings have failed to affirm this concept. Patent court rulings have failed to affirm this concept. The resultant confusions will only increase with time, and with the advances of science. Private ownership of the genome or of facts of nature will become increasingly difficult, expensive, obstructive. What has been done by the courts is a mistake, and it must be undone. The sooner the better.”

Alex turned to Bob Koch. “I think this judge had help,” she said.

“Yeah, could be,” Bob said.