Australian Lefty on Politics, Governance, Science and Info Management

EU COFR 3.2.3 : Clarification needed: Wigs? Cultures?

Posted by Dave Bath on 2007-07-10

Something random hit me about EU Charter of Fundamental Rights 3.2.3 (It’s actually an unnumbered dot point): "the prohibition on making the human body and its parts as such a source of financial gain".

I wonder if this covers hair (and if you are an "Aaahh!!! Real Monsters" fan, toenail clippings)?  More seriously, what about cell-lines?

If so, this would mean that human-hair wigs (which can fulfil a useful purpose for those suffering alopecia for various reasons) would have to be sold at-cost?

Now, this raises the question of what is and is not a "human body part".

Blood, for example, might be considered similar to hair.  Unlike hair, blood is sometimes considered as an "organ" in medical textbooks.  (Don’t ask for a citation, I just remember it from my studies a few decades back, and many of those texts are boxed at the moment.)

Perhaps there is a form of words that would differentiate between products that can be extracted and used (such as blood, or various blood products including hormones) and body products such as hair?  Could we use the term "organ" instead of part?

If we separate out hair from blood based on the degree of utility it performs in the body, then how would this affect the profit from cell lines derived from cancerous tissue removed during medical treatment?  This is a thriving source of business, and indeed there are cases where court cases have involved profits from the sale of cell lines sought by the families of those from whom the cancerous tissue was removed.  The maintenance of those cells lines is a valuable activity, and there’s no telling which cell line will end up valuable and which won’t, so private enterprize might maintain cell lines that governments wont.

Now, I’m a fan of the products of human bodies being non-profit (covering costs is fine), be it blood, spermatozoa, or cell-lines.  This extends to the abhorrence for companies patenting DNA sequences (and the proteins they would produce), even when the company does not know the function of the protein.  Such "land-grabs" have been happening like crazy in the US – and the Human Genome project received much state funding.

(Now, some of you might see why Craig is sometimes called "Darth Ventner")

What I’d like to see is a form of words that would make organs, blood, cell-lines and DNA sequences protected by such a statement of rights, but leaving the way open to for-profit use of hair (and toenail clippings).  Do any bloggers out there with a legal background (and btw Legal Eagle at the entertaining Legal Soapbox is one) have any ideas on this?

5 Responses to “EU COFR 3.2.3 : Clarification needed: Wigs? Cultures?”

  1. Thank you for the kind words! :-)

    In fact, this issue is one that has vexed property lawyers for a while. There’s a famous case called Moore v Regents of the University of California (1990) 793 P 2d 479 which deals with exactly the issues you raise. Nasty people like me make students write essays about the case.

    Moore was treated for leukaemia at the University of California Medical Centre. His spleen was removed as part of his medical treatment. His doctor and a researcher established a “cell line” with his spleen cells. Because the cells were cancerous, they produced a particular protein in large quantities for an indefinite period. They patented the cell line and made a profit. Moore sued them, saying that he had not consented to the use of his cells in this way.

    Could the spleen cells be said to be Moore’s “property”? They had been detached from him, and therefore were separate from him – did this mean they could be owned? A majority of the Supreme Court of California said that they were not Moore’s property. However, the University was found to have breached its fiduciary duty towards Moore (namely its duty not to profit at his expense without obtaining his consent).

    I agree with you that the use of DNA and cell lines for profit is kind of scary. The other day someone sent me this crazy site where you can sell your DNA (purportedly). No way anyone’s gettin’ near my DNA.

    I think the only way you could allow for-profit use of hair and toenail clippings is to create an express exception for it: eg, “a prohibition on making the human body and its parts as such a source of financial gain, excepting toenail clippings and hair.”

    Hmm, interesting post. I’ll do a link to it before I go to bed.

    Cheers, LE

  2. Further thought – perhaps the distinction should be between body parts with living cells (cell lines, reproductive cells, blood) and body parts with dead cells (hair, toenails).

  3. […] blogging gig is coming across other interesting blogs and people. Can I recommend that you read this post over at Balneus by Dave Bath about property in body […]

  4. Dave Bath said


    Nasty people like me make students write essays about the case.

    Nasty? No! This is an increasingly important issue and you are doing the kids a favor by getting them to think about it. Besides, first principles rather than precedent is a better workout for the brain. BTW: If my post was a short answer to the tutorial question, how would you mark it?

    Moor v Regents of UCal

    This is one of the cases I recall, but I couldn’t remember the name (all I could remember was that it was in the US – but that’s always a good bet for odd cases – and the other was that it was spleen/leukæmia).

    The issue could have been avoided if the cell-line, and products from it, were non-profit.

    No way anyone’s gettin’ near my DNA.

    Well, assuming your DNA is pretty close to everyone else’s, the Ventners of this world – and the others who are just pillaging the results of the Human Genome Project – already have. What I particularly object to here is the pathetic way patents are being issued for sequences and the proteins that are derived from them when the pirates don’t even know what they do. If anything is the common property of all humanity, it’s our DNA sequences.

    Anyway, patents are supposed to be for inventions, not discoveries. This exposes the wider issue of patents for discoveries (including mathematical theorems, which many argue are just there, existing eternally in some Platonic sphere).

    The only biological patents I’d grant are those when a sequence (or protein) is designed de novo based on a functional requirement (e.g. fitting into a receptor) or in fully artificial lifeforms (which are starting to be developed).

  5. […] in body parts? You better believe it, in this wry piece by Legal Eagle (and the Dave Bath post on which she riffs). Enter your email address to receive Missing Link in your email […]

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