'‘Abandonment’ and the acquisition of property rights in separated human biomaterials' by Neil Maddox in (2016)
Medical Law International 1-23 offers
a critique of the concept of ‘abandonment’ when utilized in
relation to separated human biomaterials. In the absence of the recognition of even
limited property rights in the human source of such materials, the author contends
that utilizing abandonment is meaningless and misleading. Absurd consequences need
not result from recognition of such rights and indeed most cases of purported
abandonment of human tissue are more akin to voluntary transfers. Describing such
transfers in terms of abandonment obscures questions as to the agency and the
scope of the fiduciary duties of medical professionals and researchers. Income rights
in such materials are more appropriately determined as normative questions as to
who should benefit from windfall wealth in human biomaterials, not by reference
to abandonment. An alternative framework that recognized that the source of
human tissue had limited property rights in it would solve many of the conceptual
difficulties outlined.
Maddox argues
Modern advances in biotechnology have led to rigorous debate as to how we properly
regulate biological materials once they have been separated from the person. There are
conflicting views as the usefulness of utilizing a property model to deal with these
issues. Questions as to the ownership of such separated materials, and in particular
whether they vests in its source or a subsequent appropriator, such as a medical research
institute, have led to some notable litigation. Broadly, these disputes can be divided into
those where the power to control the materials is in issue and those where it is the
entitlement to the income from their commercialization. To admit that the source has
property rights in their tissue after it has been separated from their body, it is feared by
some, would impose onerous costs upon medical researchers in investigating title, and
would impede research. To prevent this, so this argument goes, the source should be
granted no property in their own biological materials. Nonetheless, and somewhat
incongruously, a concept derived from property law, that of ‘abandonment’ has been
invoked in this debate in aid of this view.
Abandonment first appears prominently in a report of the Nuffield Council on
Bioethics in 1995 concerning legal and ethical issues relating to human tissue. The
report recommended, inter alia, that in any consent to treatment, tissue removed in the
course of that treatment would be regarded as abandoned by its source.
Such an approach would conveniently preclude the source of tissue from making any
subsequent claims to it, protecting the hospital and subsequent researchers from having to
fend off litigation that might impede the smooth running of the hospital and the progress of
important medical research. In other words, it is a simple and easy way to resolve any
potential title disputes relating to human tissue. The normative merits of this approach are
not the focus of this article. Instead, I seek to critique utilizing the concept of abandonment
to justify such an approach. There are a number of elements to this.
First, abandonment is one of those phrases that has different meanings depending on
the context. When one describes a person ‘abandoning’ their property (or their tissue,
blood or sperm sample for that matter), it is not always clear what is meant. It can
mean, inter alia, the abandonment of all claims in respect of a thing, as appeared to be
what was meant in the Nuffield report or be employed as a legal term of art to refer to
‘divesting abandonment’ a concept derived from property law, whereby an owner loses
all ownership of his property if divesting abandonment is found to have occurred.
Second, in property law there are specific requirements that must be met before
divesting abandonment operates and an owner is deemed to have his ownership extinguished:
There must be loss of de facto physical control, there must be an intention to
abandon all rights in the property and there must be indifference as to who any subsequent
owner might be. I contend that these requirements are often overlooked when
discussing abandonment of human tissue, and, further, that if we are to examine these
elements closely, it becomes apparent that many cases of purported abandonment of
human tissue are more akin to voluntary transfer (also referred to as delivery). Incorrectly
invoking abandonment obscures this, and also obscures the potential remedies
available to a source of human tissue consequent on such a finding.
Third, I contend that is impossible to determine the role that the concept of abandonment
might usefully play in relation to human tissue, when it is has not been conclusively
determined where the original ownership of such material lies. I argue that this uncertainty
may only be resolved by recognizing that limited property rights vest in the source
of the material. Following on from this argument, I contend that the source of human
tissue never has income rights to them, and thus such rights accrue as windfall wealth,
not by virtue of their abandonment by their source, the concept here further confusing an
already muddled area of law.
This article first sets out the differing meanings of the term abandonment and then
examines the law relating to the property law concept of divesting abandonment, fleshing
out is operation and requirements. Then, I examine how abandonment has been
applied in relation to human tissue, critiquing such use in the Nuffield report and I
outline the inappropriateness of using a line of American Jurisprudence as precedent
for a general presumption of abandonment. I then set out the difficulty of utilizing
abandonment in relation to human tissue, given the uncertainty as to who the original
owner of such material is. I further contend that most cases of purported abandonment of
hospital waste are more akin to voluntary transfers, as there is no break in seisin and no
‘roll of the dice’ by their source as to who the subsequent owner might be. I then discuss
how income rights in human materials do not arise by virtue of their abandonment by the
source, and that invoking abandonment obscures normative questions as to where such
rights should initially vest. Finally, I argue that an alternative framework where limited
property rights were granted to the source of human tissue need not lead to absurd
consequences, and abandonment could be useful in such a framework, as there would
be expressly identified rights to abandon.
Maddox concludes
There is a myriad of objections to invoking the concept of abandonment to separated
human biological materials. Much of the difficulty comes from utilizing a property law
concept, despite the failure (for the most part) of the law to recognize that the source of
these materials has any property rights in them. Such materials are the source’s property
in so far as their actions can be taken to have extinguished any ownership rights they had
in them before being acquired by a hospital or research institute. However, when one
inquires as to the ownership rights that the source abandoned, one is met with the
objection that there is no property in the body. You can’t have your cake and eat it.
While there is a failure to recognize the property rights of the source in the body, then it
is the language of property that should be abandoned.
There is also merit in recognizing a limited form of property in separated body parts –
mere property – that is an extension of the bodily use freedom principle. Absurd consequences
need not result as such items would not be the same as chattels and would not
be treated the same. Such an approach need not impose onerous costs on medical
institutions in investigating ownership. Furthermore, most cases of purported abandonment
in a medical context are more akin to a voluntary transfer, as there is no roll of the
dice as to the identity of the next owner. The misdescription of such transfers as abandonment
obscures questions about the agency and undue influence that are appropriately
raised where a fiduciary personally benefits through the relationship from a gratuitous
transfer of a valuable or useful res. Finally, it is more appropriate to determine entitlement
to income rights in such materials by reference to nuanced normative questions
concerning where ownership o
