A. Allocation of Rights

In our core case – where A brings a claim against B for B’s unauthorised use of a tissue sample – the argument that may be made by A is that B, by his conduct, has “infringed A’s property right”. In order for this argument to be successful, it should be incumbent upon A to establish that he actually holds (or held) such a right; unless he can do this, he cannot plead that B has infringed “A’s right”. Consequently, one of the first steps in the litigation between A and B should be the determination of the question: did A hold a property right in the tissue at the time of B’s interference? In order to answer this question, the law has developed a number of rules governing the creation and allocation of property rights. The default rule, which provides the starting point in all questions of allocation in property law, is the possession rule. According to this rule, whenever there is an ownerless thing, or res nullius, a property right in the thing is acquired by the person who takes possession of it. This can be seen in cases involving wild animals where a property right is allocated to the person who catches the animal, and hence takes possession of it, rather than the person who has, for instance, chased the animal and worn it down. Although this rule can be displaced by more appropriate rules of acquisition in particular cases, the rule is wide-ranging in its application, due to the fact that it applies not just to ownerless things but, via the operation of the doctrine of relative title, also to things belonging to others.Footnote ⁴ Therefore, it may be thought that this would provide the starting point when it comes to human biomaterials. These rules tell us in whom a property right in the material would vest, namely whether the right would vest in A or B (or some third person, X). Determination of this issue should be a decisive stage in the litigation.

Despite this, the rules governing the allocation of property rights are frequently ignored by the courts when dealing with cases in which property rights to human tissue have been asserted. A good example is the case of Yearworth v North Bristol NHS Trust.Footnote ⁵ In Yearworth, the six claimants, before undergoing cancer treatment that could affect their fertility, gave sperm samples to the defendant hospital for safekeeping. The samples were frozen but the defendant carelessly allowed them to thaw. Five of the six men claimed for psychiatric injuries that they alleged were suffered as a result of learning that their sperm had been destroyed, potentially leaving them infertile.Footnote ⁶ Because the damage could not be considered personal injury, the court had to consider whether the claimant's psychiatric loss was consequent upon any property damage.Footnote ⁷

In light of the common law's traditional reluctance to recognise property rights in respect of such material, the question that occupied the court was: can sperm form the subject matter of a property right? In an important decision, the Court of Appeal held that it could. Lord Judge C.J. expressed dissatisfaction with the long-standing exclusion of human tissue from the scope of property law, noting that developments in medical science had led to the need for a “re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body”.Footnote ⁸ Having found that the sperm could be “owned”, the Court of Appeal held that the defendant was liable to the claimant for the negligent damage to the sperm (as a breach of the terms of the bailment under which it was transferred to the defendant).

There was, however, a missing step in the court's reasoning. Whilst the court answered the question “can sperm form the subject matter of a property right?” in the affirmative, it did not ask the question which logically follows: “to whom should such a right be allocated?” Instead of asking this question, the court simply assumed that, if it were to recognise a property right in the sperm, then the right would be held by the source of the material: the claimant. The default rule of acquisition, as noted above, in such cases (where the thing is res nullius) is that a property right in the thing will be acquired by the person who first takes possession of it. On the facts described in the judgment, it is not entirely clear which party this rule would favour, as this question was simply not considered to be relevant. However, it is, at the very least, possible that it could have been an employee of the hospital who was the first to meaningfully possess the sperm sample. If this happened, then, according to the default rule of acquisition, any property rights would vest in the defendant, not the claimant, thus defeating the claim in negligence.

The court did not consider the standard rules of acquisition. Instead, it focused on the fact that, under the Human Fertilisation and Embryology Act 1990,Footnote ⁹ the men had the right to prevent the hospital from using the sperm if they objected. This, the court opined, was consistent with the academic account of ownership proposed by Tony Honoré from 1961, in which he identified the “indicia” of ownership, including a right to possess and a liberty to use.Footnote ¹⁰ Unfortunately, this reasoning is rather circular, in that the men would have held these indicia of ownership if the Act vested property rights in them, yet the Act is not a vesting statute. It does not, for instance, purport to confer on the men the right to sue third parties for unauthorised interferences or damage to the sperm (which, as will be argued below, is the hallmark of a property right). These issues were not probed, and the court focused on the question of whether sperm could form the subject matter of a property right. Having answered that question in the affirmative,Footnote ¹¹ the court simply presumed that the right was allocated to the men. In taking this approach, the court conflated the question of the property status of the sperm with the question of in whom rights to that sperm would vest, and consequently side-stepped the established rules of acquisition of property rights.

This is not to say that the outcome in Yearworth is necessarily the wrong one. Had the court been of the view that, in light of the policy behind the Human Fertilisation and Embryology Act 1990, it would be appropriate that the source of the sperm should always acquire the property rights, rather than the first possessor, then the rules of acquisition are flexible enough to accommodate this. There are a number of specific contexts in which the default possession rule is displaced by what is thought to be a more appropriate rule.Footnote ¹² In Yearworth, the court could have made clear that the first possessor rule should give way to a different rule – that excision or separation of human tissue vests the right in the progenitor. Such an approach would have been not dissimilar from the rule that vests title to offspring of animals in the owner of the mother.Footnote ¹³ In other words, the court could still have reached the same conclusion in the case (that the claimant should succeed in his claim for negligent damage) simply by stating a rule of acquisition that favoured the men. As it happened, however, the issue was simply ignored.

A similar problem can be seen in one of the leading US decisions, Moore v Regents of University of California. Footnote ¹⁴ The claimant had consented to providing blood and tissue samples to the defendants for the purposes of cancer treatment. When the claimant discovered that the defendants had developed an extremely valuable cell line from the tissue samples, he brought a claim in, amongst other things, conversion for the infringement of his property rights. Rejecting the conversion claim, the court was reluctant to recognise that the cells could be made the subject of a property right. The principal reason for this was given by Panelli J.: “[The] important policy consideration is that we do not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor's wishes.”Footnote ¹⁵

If the court were to recognise the existence of property rights in the excised cells, Panelli J. reasoned, then this would allow the source of the material to prevent the university from carrying out valuable research on this type of material, or at least force the university to pay for the right to use the material. In order to prevent this, the court refused to recognise the existence of property rights in the excised cells. The problem with the decision in Moore, as in Yearworth, is that it is based upon the assumption that, if property rights are recognised, then they would automatically be allocated to the source of the material. Here, then, the California Supreme Court made the same assumption about allocation as the Court of Appeal in Yearworth, and similarly subsumed the allocation question into the question of the legal status of the material. As explained above, there is no basis for this assumption. The default rule, that a property right is allocated to the first possessor, would favour the defendant, as it was the researchers who had excised the claimant's spleen and would thereby gain any property rights in it. This would have caused Panelli J.’s concerns to fall away, as, far from hampering the defendant's research activities, property rights would have positively facilitated them.Footnote ¹⁶

The Yearworth decision will arguably be the most influential precedent for future determinations of the property status of human tissue in England and Wales, just as Moore has been in the US. Yearworth has already had an impact in Australia in a number of important cases.Footnote ¹⁷ This is concerning given the problems identified here, as the decisions set a precedent for (wrongly) presuming that the question of in whom property rights vest is answered by determining only whether they will vest at all.

The implications of this mis-step are compounded by the tendency to make a similar conflation by legal scholars. Very often in the academic debate around the ownership of human tissue, commentators merge the question of whether human tissue can be the subject of a property right (the “status question”) with the question of to whom should such a right be allocated (“the allocation question”). Many make the assumption that, if tissue can be the subject of a property right, then the source will be the initial owner, and this then sets the starting point for their analysis. This unsound foundation has skewed the debate in a number of problematic ways. For example, as Herring and Chau note, there is often the view in relation to Moore that the case “shows the problem with not adopting the property approach. Vast sums of money were made by the scientists, but the person who made ‘everything possible’ was left with nothing. A property approach would ensure that he was adequately rewarded.”Footnote ¹⁸

According to this argument, the court in Moore should have recognised property rights in the excised cells, as this would have had the effect of furnishing the claimant, as progenitor, with some financial reward. Herring and Chau, amongst others, oppose the recognition of property in human tissue for precisely the same reason − that doing so allows the source to control what is done with the tissue to too great an extent. In their view, resisting treating tissue as property is a way to prevent individuals gaining too much control over tissue, which would be better regarded as a community resource.Footnote ¹⁹ Jasper Bovenberg takes a slightly different view, largely in line with the view of the majority in Moore. He suggests that, if property rights were recognised, then it would be profoundly difficult to establish useful biobanks for research. Such efforts would be hampered by “costly transactions to acquire those rights, preceded by countless negotiations about the terms of the collection, storage and use of the samples”.Footnote ²⁰ Yet these normative arguments for and against the recognition of property rights in human tissues each presume that any such rights would automatically be allocated to the source of the material. There is no basis for this assumption in the law of property and, once this is recognised, many of these arguments lose their normative force.

It is important to note that not every decision or academic commentary can be criticised on these grounds. Happily, there are certain decisions that do keep the status question separate from the allocation question. An example is the well-known case of Doodeward v Spence, which established the “work and skill” exception to the “no property in a corpse” rule. The claimant in the case had preserved conjoined twins in spirits, and claimed that the defendant, a policeman, committed conversion when he seized them. The claim in Doodeward succeeded, as the court held that, when human tissue is the subject of “work and skill” in order to preserve it, then it can form the subject matter of a property right. Vitally, the court also made clear that it was the application of this work and skill by the claimant that led to his acquisition of the property right. This fits neatly with the specificatio principle, whereby a right in a newly manufactured thing is allocated to the person who has created the thing by their efforts. The status of Doodeward v Spence is uncertain following the Yearworth case, but the methodology of the court's reasoning in the case still serves as an example because the court adopted a clear rule for the allocation of property rights: when human tissue is preserved, a right is allocated to the person who preserved it by their skill and effort. In Doodeward, therefore, the status of the human tissue was considered separately from the allocation question. It is unfortunate that this approach has not been followed in the more recent cases.

It is imperative that, when the legal status of human tissues is debated, the question of whether tissue should be owned must be kept separate from the question of who should own it. These are logically different questions. In failing to recognise this, the arguments deployed by courts and commentators both for and against the recognition of property rights often lose their force. It has also, as we will see in the next section, led to unnecessary “solutions” to work around the “problem” of source ownership.Footnote ²¹

B. Disposition of Rights

The concern, expressed in Moore, that property rights in human tissues would cause research to stagnate has played an important role in the current debate. As we saw, Panelli J.’s response to this concern was to refuse to recognise property rights in such material at all. Another common response is to invoke the notion of a “disposition”, whereby the source of the material is said to “dispose” of any rights he holds in it, thus permitting another to use it.

One example of this approach can be found in the judicial reliance upon the notion of a transfer of property rights. Take our core case again, where A sues B for B’s unauthorised use (for research purposes) of tissue excised from A’s body. In order to prevent A from asserting a property right in the tissue sample that could restrict B’s ability to use it in his research, it may be possible to invoke the notion of a transfer. Under this analysis, A is said to have “transferred” his property rights in the material to B when he consensually underwent the medical procedure, making B’s use entirely legal. An example of this analysis can be found in the US case of Washington University v Catalona. Footnote ²² The defendant was a university researcher, initially employed by the claimant university, who had been involved in the collection of tissue samples over a number of years. The dispute arose when the defendant was appointed to a new university and he wished to take the tissue samples with him – something that the claimant resisted. In finding that the claimant had title to the material, the court, relying on the legal notion of a transfer, held that, when the tissue samples were excised from the donors, the donors had made a valid “inter vivos gift” to the claimant.Footnote ²³ By transferring their property rights in the material to the claimant, the potential for donors to hinder research activities was curtailed, as they had no legal basis upon which to restrain the claimant's use of the material.

A similar approach can be seen in the reliance on the doctrine of abandonment in certain contexts. According to this analysis, when a tissue sample is excised from A’s body by B, A is said to “abandon” his property right in the material, thus making it ownerless and permitting B’s use of it. This analysis differs slightly from that of a “transfer”, as A’s rights are not transferred to B; rather, A’s rights are destroyed, rendering the tissue res nullius. This analysis was notably favoured by the Nuffield Council for Bioethics in their influential report, Human Tissue: Ethical and Legal Issues.Footnote ²⁴ The Council suggested that, when human tissue is excised from a person, any subsequent use of the tissue in the course of medical research would be insulated from legal liability because the progenitor would have “abandoned” his rights to it.Footnote ²⁵ For some, the possibility of abandonment means also that the next possessor can gain a right to possession and then legitimately defend their possession (and protect their usage) against others. This is said to support the pursuit of medical research goals, as it enables researchers to obtain and use discarded tissue in their work. For example, in presenting arguments for recognising property rights in biomaterials, Sophie Mills suggests that “If a patient did not have strong opinions about the use of the tissue, the property status would facilitate a gift or abandonment of rights in it, and this would significantly clarify the legal ownership status of the tissue and help prevent and resolve any subsequent legal disputes”.Footnote ²⁶

Although these concepts of “transfer” and “abandonment” may seem to explain why the source of a tissue sample could not restrain the subsequent use of the sample in scientific research, many problems arise at a doctrinal level. First, it is important to stress that, when “transfer” and “abandonment” are used in the context of property law, they refer to the transfer and abandonment of rights, not the factual disposing of the thing.Footnote ²⁷ Both “transfer” and “abandonment”, therefore, are concepts that presuppose that there are property rights to be disposed of.Footnote ²⁸ The problem here is that the common law, as noted, has traditionally been reluctant to recognise property rights in respect of human biomaterials, with a case such as Moore providing a clear example. It is, of course, open for a superior court, such as that in Catalona, to break with this approach and recognise property rights in respect of human biomaterials, as happened in Yearworth. However, in Catalona, the issue was not addressed, with the court simply assuming that property rights in the material existed. The law's traditional reluctance to recognise such rights means that this assumption is difficult to sustain. The problem is, if anything, more striking with the Nuffield Council's reliance on abandonment. In their report, the Nuffield Council argue at length that human tissue should not be made the subject matter of a property right, and advocate alternative regulatory schemes. The Council, therefore, has argued against property rights whilst invoking a doctrine, abandonment, that presupposes the existence of property rights.

If this first problem can be overcome, a second arises. Consider again our core case, where it may be argued that A has transferred his property rights in the tissue to B when he consented to undergo the operation. In order for it to be possible to say that A has either “transferred” his right in the tissue sample to B or abandoned his right to it, then not only must the law recognise a property right in respect of the tissue sample, but it must also allocate it to A. This may be difficult to establish on the facts of a case. In Catalona, for instance, it was the defendant and his team of researchers who, having excised much the disputed material, were the first to take possession and, hence, would normally acquire a property right in it before the source of the material could acquire such rights. If the normal acquisition rules were applied to the facts of Catalona, then it would seem highly unlikely that the donors of the material had any rights that they were capable of transferring or abandoning.

Further problems attend the doctrine of abandonment. In particular, the legal status of the doctrine is, at best, tenuous. The English law is deeply reluctant to recognise that an owner can destroy his title, and make the thing res nullius, by physically disposing of the thing.Footnote ²⁹ If the doctrine does exist, it will apply only in very limited situations where a clear intention to abandon can be identified. Therefore, the common academic view that tissue could be presumed abandoned where the source of tissue has no further interest in it is unlikely to hold.Footnote ³⁰ In fact, there is particular resistance in the English case law at least to presuming abandonment. Quite the contrary, the courts tend to find abandonment only when there is strong evidence of an intention to do so.Footnote ³¹ This has serious implications for both courts and commentators such as Mills, who seek to address problems with their property models via reference to a presumption of abandonment as claims about the likely legal outcomes where materials are discarded will be mistaken, and the asserted problems with the property model will not have been resolved.

C. Content of Rights

A further misconception that has distorted the debate over the legal status of human biomaterials is the view that a property approach would lead to the commercialisation of such materials. To allocate a property right in such material to a particular person, according to this argument, would be to give that person the legal right to exploit the material commercially – something that is often seen as undesirable. Thomas Murray asserts that “putting a price on the priceless, even a high price, actually cheapens it. So we don't approve of selling out body parts; and the body isn't quite property”.Footnote ³²

But, in fact, commercialisation and exploitation are not inevitable consequences of the recognition of property rights. The law of property is neutral to the issue of exploitation: it neither protects an owner's right to use a thing nor restricts his ability to do so. Consequently, the concerns explored by many commentators about the potential to exploit human biomaterials will arise irrespective of whether or not property rights are recognised.Footnote ³³ To make this point, we need to say something about the content of property rights.

A property right is identified by the enforceability of the right, with such rights typically said to be “enforceable against the world”. Take the example of a clear property right: freehold title to land (“ownership” of land, in lay terms). If a person, A, has freehold title to a plot of land and B, without permission, crosses A’s plot of land, then B can be liable for this trespass. However, the same is true if C, D, E or F, etc. walk across A’s land without permission: they will all equally be liable for trespass. The point is that A’s right is labelled a “property right” because he is owed a duty by all persons. The important issue, and the one which is relevant to the concern raised by Murray and others, is the content of this duty: if A has title to a tissue sample, for example, what types of behaviour must B, C, D, etc. refrain from engaging in? It is this question that may prove decisive for those making normative arguments about the appropriateness of a property law system regulating human biomaterials. The more onerous the duties owed to the owner of biomaterials, the more uneasy some become with the notion.

There are some observations on the content of property rights that we can make with a reasonable degree of confidence. The first is that the holder of a property right is almost certainly owed a duty of non-interference by others. This is sometimes called a “right of exclusion”. This can be readily inferred from the law of torts, especially torts such as trespass, conversion and negligence. Should A, for instance, have a property right in respect of a car and B (or C or D, etc.) causes some physical interference with the car, such as by scratching it, denting it, smashing a window, etc., then he will be in breach of duty and liable in one of these torts. From this basic observation, we can say that persons generally owe the holder of a property right a duty to refrain from physically interfering with the thing. Accordingly, in our core case, to allocate a property right in a tissue sample to, for instance, A is to say that all others (including B) owe A a duty to refrain from physically interfering with the material.

That property rights entail rights of non-interference is not controversial. The more difficult question, which relates directly to concerns about property enabling objectionable uses of tissue, is whether property rights also consist of “use rights”. It is often said that an owner of a thing has a “right to use” the thing.Footnote ³⁴ The apparent “right to use” explains, to an extent, why there are concerns that a property approach would enable the commercialisation of human biomaterials. According to this view, if the law were to allocate property rights in a tissue sample to a person A, then A’s ability to exploit the material for commercial purposes would be directly protected by the law, as he would have a “right to use” it.

The concern over property rights facilitating commercialisation, we suggest, is misconceived because it is not correct to conceptualise property rights as including a “right to use”. The word “right” is usually reserved for a legal relationship that imposes a duty upon another person to behave in a certain way.Footnote ³⁵ An owner's “right of non-interference” is a “right” properly so called because it imposes a legal duty upon others to behave in a certain way: a duty to refrain from physical interferences with the owner's thing. A “right to use”, on the other hand, does not impose a legal duty upon others to behave in a certain way. There is no legal duty to refrain from impairing an owner's ability to use his thing.Footnote ³⁶ The better word to describe the legal status of “use” is that of “liberty”.Footnote ³⁷ This nomenclature was favoured by Cave J. in Allen v Flood, who stated that “it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun so long as he does not violate or infringe any one's rights in doing so”.Footnote ³⁸

To say that an owner of a thing has a “liberty” to use his thing is simply to say that his use is permitted; he is under no legal duty to others not to use his thing and, in the absence of such a duty, his use is permitted. If A owns a car, then A is under no duty to others (B, C, D, etc.) not to use the car and, in the absence of such a duty, A’s use is permitted.

To describe “use” as a “liberty”, rather than a “right”, is significant. The reason for this is that a “liberty to use”, as described, would exist regardless of whether or not property rights were recognised to exist in respect of human biomaterials. Let us say that a person, A, is in possession of a tissue sample. Let us also say that a court refuses to recognise that A, or anyone else, is capable of holding a property right in respect of the blood sample, so that it is res nullius. It would still be the case that A would not owe any other person (B, C, D, etc.) a duty not to use the blood sample. If A started, for instance, to use the tissue sample in the course of medical research, he would not thereby incur liability to B, C or D, etc., as he would have breached no duty in so doing. This means that A would still have a liberty to use the tissue sample: his use would be legally permitted as against other people.Footnote ³⁹ As the liberty to use exists irrespective of the recognition of property rights, it cannot be said that property law is directly facilitating the commercial use of human biomaterials. Rather, it is neutral as to this issue in that it neither confers a “right to use” nor restricts an owner's liberty to use.Footnote ⁴⁰ Consequently, whilst commercialisation may be a legitimate concern, it would not be the product of property rights.

This neutrality has the added implication that the use of an item can be legally restricted regardless of any property rights that are held in it. For example, if A is the owner of a knife and has the liberty to use it as he wishes, this does not mean that the law cannot restrict him from using that knife to stab someone. But the very same restriction applies to B in relation to the knife – he too may not use it to stab someone. That A is the owner and B is not is irrelevant – the restriction on use has nothing to do with property rights.Footnote ⁴¹

Concerns about commercial exploitation (so long as it is a valid concern) are far better dealt with by imposing statutory restrictions on the ways in which an owner of such material could use it. Imposing such restrictions is a fairly common practice with certain types of property rights. An example is the Town and Country Planning Act 1990 and a raft of other environmental legislation,Footnote ⁴² which provides that a freeholder who wishes to carry out building, engineering, mining or other operations in, on, under or over his land must first apply to the relevant local authority for planning permission.Footnote ⁴³ In respect of human biomaterials, if similar policy concerns were expressed, then these could be more effectively met by similar legislation, not the denial of the existence of property rights.Footnote ⁴⁴

It is also worth noting that, even if property rights in human tissue were denied, this would not necessarily prevent commercialisation. The existence, or not, of property rights does not determine whether in reality something is commercialisable. Tissue samples are regularly traded at present without any clear legal recognition that they are “property”. Indeed, corpses and their parts have been bought and sold for centuries, despite the long-standing rule that a corpse could not be owned. In modern times, tissue samples can be purchased from commercial ventures who process and supply tissue for medical research. In the absence of clear property rights in samples, it is not clear what, legally, is being transferred in a commercial transaction in relation to tissue, but it is certainly the case that tissue is actively traded at present despite its murky legal status.Footnote ⁴⁵

D. Conclusion on Misconceptions

In making these criticisms, we may leave ourselves open to the criticism of being overly pedantic in our plea for the correct application of property law principles. Yet we feel that there are good reasons for pointing out the problems. Consider, for instance, the huge amount of biomaterials held by research institutions. A number of questions arise in respect of such material: is this material regulated by property law? If so, then to whom are property rights in this material allocated? Is it possible for such rights to be transferred or destroyed? What is the content of these rights? The basic rules of property law provide clear answers to these questions. By ignoring, or misapplying, them, the legal position becomes unclear, and a basic question – such as “who owns that tissue sample?” – becomes very difficult to answer. It also becomes difficult to have a useful discussion of alternatives to property law because a comparison of outcomes cannot be made. Our aim in the next section is to provide a clear map of property law's basic doctrines that should allow those debating the issue to avoid some of the problems outlined here.

A. Can Human Biomaterial Form the Subject Matter of a Property Right?

As noted above, in our core case – where A sues B for B’s unauthorised use of a tissue sample – the claim made by A may seek to draw upon the law of property. A may argue that B, by his unauthorised use, has “infringed A’s property right in the tissue sample”. Should a court be confronted with such a claim, then we suggest that the very first question that it should consider is whether the material in question is capable of forming the subject matter of a property right.

As a basic principle, anything with a physical existence can be made the subject matter of a property right. In the opening passages of Book II of Gaius's Institutes, where the author deals with the scope and reach of the Roman law of property, we find the statement: “Corporeal things are those which are tangible, as land, a slave, a garment, gold, silver, and, indeed, other things innumerable.”Footnote ⁴⁶ The last word in this quote, “innumerable”, is telling. There would be little point in enumerating all of the different physical things that are capable of being owned, as the list is an open-ended one. As Ben McFarlane states, “The presumption is that any physical object can be the subject of a property right.”Footnote ⁴⁷ “Human biomaterials” refers to a wide class of objects, from blood or tissue samples to organs, excised cells or entire cadavers. However, they share the common feature of having a physical existence and are as tangible as any car, coin, painting or piece of land. The starting point, therefore, is that such material could be made the subject matter of a property right.

There is, however, an important qualification to this statement, which is that a person's own body cannot form the subject matter of a property right. Although a topic of much philosophical concern and debate, at a doctrinal level, self-ownership is an impossibility. The reason for this is that the rules that constitute the law of property become largely incoherent when applied to a person's own body. Principles such as that a person can acquire a property right via possession or that rights may be transferred via delivery cannot sensibly be applied to a living person's own body. As such, the creation and content of the rights a person has in his own body must be governed by different rules.Footnote ⁴⁸ However, when we turn to human biomaterials that are separate from us, such as excised tissue samples, ejaculated sperm or hair clippings, we reach the opposite conclusion. These are things that can be possessed, delivered and disposed of. As such, the rules governing the operation of property rights can be applied to these things.

When a court is faced with a dispute over human biomaterials and it seeks to draw upon property law principles, then the first question it must ask is whether the material in question can be made the subject matter of a property right. The criterion for this, as we have seen, is a low one: the material must have a physical existence and be separate from the potential right holder. If these are satisfied, then the answer to the first question is “yes”.

B. Should Human Biomaterials Form the Subject Matter of a Property Right?

As a matter of principle, separate human biomaterials can form the subject matter of a property right. Whether they should form the subject matter of a property right, however, is a matter of policy. As McFarlane notes, in some cases, “the particular nature of a physical object may make the idea of having a right to that object, prima facie binding on the whole world, distasteful, inappropriate or otherwise unwelcome”.Footnote ⁴⁹ Many have argued that human biomaterials fall into this category, and the approach of the courts in England and Wales until recently would seem to reflect this view.Footnote ⁵⁰ Similarly, those who find it inappropriate to permit ownership of human bodily tissue have advocated alternative forms of regulation.Footnote ⁵¹ We here explain what the recognition of property rights in human biomaterials would entail at a doctrinal level. It is then for courts and commentators to decide whether or not this would be desirable.

Let us return to our core case. As we saw above, if we were to say that A holds a property right in respect of the tissue sample, this would mean that all other persons (B, C, D, etc.) owe A a duty to refrain from physical interferences with the tissue sample. This is the principle consequence of a finding that one can hold a property right in respect of human biomaterials. The question for a court is whether or not it is appropriate to establish such duties in relation to human biomaterials: should persons generally be under a duty to refrain from interfering with a blood sample, excised cells or a donated organ?

Some have argued that it would be deeply inappropriate to recognise these exclusionary duties in respect of human biomaterials.Footnote ⁵² This primarily stems from the importance that such materials have in the field of medical research. Moore v Regents of University of California is a striking example of this. It will be recalled that the cells excised from the claimant were used to develop a cell line that was incredibly valuable in developing new treatments for medical conditions. Given the public importance of such assets, is it appropriate to leave such things to a set of rules that permit owners, whether they be the source of the material or the research institution, to exclude all others? When the Japanese businessman, Ryoei Saito, announced his intention to have his Van Gogh and Renoir paintings placed in his coffin and cremated with him, there was international outrage. In terms of property law, however, there was little others could do: their duty was to refrain from interfering with Saito's paintings, meaning that they could not, as a matter of law, exercise control over them.Footnote ⁵³ Do we wish to throw human biomaterials to a set of rules that can facilitate the capriciousness of the private owner?

This may be a powerful reason not to recognise property rights. Indeed, we can see evidence of this problem in the US case of Colavito v New York Organ Donor Network (2006–07).Footnote ⁵⁴ Robert Colavito was suffering from end-stage renal disease and needed a donor kidney. Upon the death of his friend, Peter Lucia, Lucia's wife attempted to donate both of her husband's kidneys directly to Colavito by indicating this on the consent to donation form. The form included a term that permitted the organs to go to someone else if they could not be used by the donee.Footnote ⁵⁵ After the kidneys were removed, one kidney was sent to Colavito's transplant team but it turned out to be unusable due to the presence of an aneurysm. Meanwhile, the other kidney was transferred elsewhere and successfully transplanted. It later emerged later that neither kidney was a compatible match for Colavito. Colavito claimed in conversion against the New York Organ Donor Network, arguing that, when Mrs. Lucia made the directed donation, the kidneys became his property and, in directing one of them to another recipient, the defendants had interfered with his right to possess them. Colavito wanted access to both kidneys and was upset that this had been denied to him.

Colavito's claim failed. Had it not, and the court recognised Colavito as having property rights in both organs, then he would have been able to exclude others from organs that were useless to him. A successful claim would have led to one of those kidneys going unused, wasting a potentially life-saving donor organ. In this kind of situation, concerns about regarding tissue as a community resource and the undermining effects of property would have some bite.

However, there are three points that should be considered before a court decides to eschew a property approach. The first is that the exclusionary duties that come with property rights are not necessarily inconsistent with the promotion of a public use of certain goods. Take the example of the National Gallery in London, which is a charitable trust. All of the paintings held in the gallery are the subject of standard private property rights, and most of these rights are vested in the charitable trustees. The existence of these rights plays an important function, as it means that a member of the public cannot lift a painting off the wall and take it away with impunity; they would be breaching a duty of non-interference owed to the trustees. The existence of this legal duty, therefore, gives the trustees the security of peaceful possession of the paintings which actually allows the trustees to display the paintings to the public.Footnote ⁵⁶ One way to avoid the capriciousness of Ryoei Saito is by ensuring that property rights in such items vest in the right type of owner, such as the National Gallery, rather than denying property rights at all. The obvious candidate in the context of human biomaterials is that of biobanks. Because these institutions can have charitable functions, allocating property rights in human biomaterials to them may actually facilitate uses of such materials that are for the “public good”.

The second point that a court should bear in mind before rejecting a property approach is that it could create something of a legal void. When a thing, such as a coin, painting or cell line, has some value, then it is inevitable that more than one person will want to possess and make some use of it. We often refer to this as the condition of “scarcity”, which creates a state of affairs where one person, wishing to make use of the scarce material, will find it profitable to predate on and dispossess another person who is possessing the material.Footnote ⁵⁷

Property rights are an excellent antidote to this risk of dispossession. If a certain chattel or plot of land is subject to a property right, then all persons come under a duty to refrain from attempting to dispossess the right holder.Footnote ⁵⁸ However, if these duties are removed, meaning that predation and dispossession can occur with impunity, then rule of law and public order issues arise. If a court were to hold that a valuable cell line, or a blood sample with particular scientific interest, could not be the subject of a property right, then how would the legal system react if peaceful possession of such items were disturbed?

Traditionally, it has turned to the law of theft, which ought necessarily to raise the question of property status of that tissue.Footnote ⁵⁹ Yet this does not avoid the difficulties described in the last paragraph. Take the case of R v Kelly, where the defendants were charged with theft for taking dissected specimens from a museum. The difficulty is that theft is defined as taking property belonging to anotherFootnote ⁶⁰ and, as such, it presupposes that the stolen thing is the subject of another's property right. The court recognised this and, consequently, felt it necessary to ask whether the specimens were in fact the subject matter of property rights.Footnote ⁶¹

The third point that should be borne in mind is that the existence of property rights is not necessarily inconsistent with other systems of regulation that have been proposed in respect of human biomaterials. The Nuffield Council on Bioethics, in their influential report on the regulation of human tissue, debated whether such material should be regulated by property rights, or on a system based upon consent. The “consent model” is based upon the idea that research institutions would only be permitted to carry out research on human tissue samples that was consented to by the source of the material. This consent model was preferred to the property model by the Council, and this approach was the one favoured in the Human Tissue Act 2004. However, there is nothing within the law of property that is inconsistent with a consent based approach. Take another analogy from the National Gallery. A donor may be willing to make a gift to the gallery of a painting, but only on certain conditions, such as that the painting is never loaned out and is displayed in a special gallery.Footnote ⁶² Whilst the terms by which the donor consented to the gift should obviously restrict how the National Gallery uses the painting,Footnote ⁶³ this does not displace the role of property law: there is still a need to ensure that a member of the public is not able to take the painting off the wall in the special gallery with legal impunity. The law of property is good at doing this, by imposing general duties of non-interference on all others. So, whilst property rights in human biomaterials are not being advocated here, it is important to point out that there is nothing within the law of property that is inconsistent with an approach that respects the consent of donors of human biomaterials. Indeed, property devices such as bailment would have resolved the situation in some of the cases considered here, and were in fact used in Yearworth precisely to do so. What this suggests is that there are tools and devices in the law of property that can assist in achieving many of the outcomes that seem ethically sound.

C. Who Has Acquired the Right?

If a court answers the preceding question in the affirmative, the question that logically follows is: to whom would the property right be allocated? As we saw above, courts have sometimes ignored this question, and have not attempted to apply the rules and doctrines that govern the acquisition of property rights to human biomaterials. Yet this should be a crucial stage of the litigation. Take our core case again, where A asserts that B, by making some unauthorised use of a tissue sample, has infringed A’s property right. The issue of allocation will have a decisive impact upon the claim. If the court, after recognising that the tissue sample can form the subject matter of a property right, decides that the right should vest in A, then this provides a basis for A’s claim. Conversely, should the court hold that the right should be allocated to B, then A’s claim must fail, as A cannot plead that B has infringed “A’s right”. The importance of the allocation issue goes beyond deciding the outcome in litigation. As we have seen, to recognise a property right in respect of human biomaterials has the effect of imposing a legal duty on all persons to refrain from interfering with the material. As a simple point of natural justice, it is imperative that those burdened by the duty are able to discover to whom they owe the duty: A or B, or some third person, X?Footnote ⁶⁴ For these reasons, the issue of allocation is of central importance in these types of claims.

The law of property has developed a number of rules governing the acquisition of property rights. It is these rules that the court should turn to in order to determine the allocation issue. It will be helpful to give a brief overview of these rules, as this will demonstrate the different options open to an adjudicator. These rules can broadly be divided into those governing the initial acquisition of property rights, and those governing the subsequent, or derivative, acquisition of property rights.

D. Would There Be Any Defences to the Property Right?

Let us say that, in respect of our core case, a court has held that the tissue sample can and should form the subject matter of a property right and that that right vests in the source, A. Let us further say that A has not transferred this right to B. The legal consequences of such a finding would be that B, along with all other persons, would owe A a duty of non-interference with the tissue sample. If it appears that B has conducted some research on the tissue sample (as happened in Moore), then, prima facie, it would appear that B would have committed a legal wrong. At this stage in the litigation, the relevant question that the court will need to ask is whether B would have any defences to A’s claim. It is never the case that property rights are “absolute”, in the sense of imposing strict liability upon all persons in all circumstances. The common law has always recognised that there are reasons why B’s conduct may be excusable by the recognition of a defence.Footnote ⁷⁵

The most obvious defence that B can invoke is that of consent. This would be an easy way for B to protect himself and his research activities from any claims by A. B could insist that A waive his rights as a condition for undergoing the procedure. Whilst A may have title to the material, therefore, B would not be committing a legal wrong by conducting research on it.

A second possibility for B is to argue that the property right held by A in respect of the tissue has been destroyed due to the operation of a property law doctrine. An example would be the doctrine of abandonment. Although there is controversy as to whether a doctrine exists as a general principle, it appears to be the case that the law will permit the doctrine to operate in limited factual contexts.Footnote ⁷⁶ It may be that human biomaterials present another context in which courts would feel it appropriate for the doctrine of abandonment to operate. If so, then it may be possible for B to argue that, although property rights in the tissue vested in A, A abandoned those rights by permitting the excision of the material. The difficulty with this argument is that it would require clear evidence of a divesting intention on A’s part. This could be met, most likely, if A were to sign a form expressing his intention to “abandon” before undergoing the operation. It is important to recall, however, that the abandonment argument will only ever be relevant if there is a property right to abandon. In other words, it would only make sense for B to plead this defence if the court allocated a property right to A in the first place. Without this qualification, one will encounter the problems discussed in relation to the Nuffield Council's report.

A third defence would be a simple bona fide defence that the law could develop. There are a number of contexts, often involving money, where the strictures of property law are moderated and a defendant will escape liability if he can show good faith.Footnote ⁷⁷ Given the interest in scientific research, and the importance of human biomaterials to this activity, there may be good policy reasons to develop such a defence for research institutions acting in good faith.