TABLE OF CONTENTS
TABLE OF AUTHORITIES
ISSUE PRESENTED
The main issue for determination in the appeal is whether Washington State could recognize a
property right in excised tissue.
STATEMENT OF THE CASE
The Appellant was diagnosed with prostate cancer on the 2 nd of September 2012. He then
travelled to Washington to seek medical help. The Respondent informed him of the severity of
the condition and advised that medical surgery was required. The Respondent then operated on
the Appellant and excised the infected tissues and blood. However, the Respondent failed to
inform the Appellant that the same could later be used for research and commercial purposes.
However, this is justified since upon excising the said samples, the Appellant gave up his
property rights. The Appellant now seeks a share of the profits and a declaration of the
infringement of his property rights.
The defendant later moved the Circuit court to dismiss the claim for being time barred which the
court deed. The Appellant then appealed raising the issue of, among others, that the Washington
State should recognize the property right in the excised tissue.
SUMMARY OF THE ARGUMENT
The main argument is that Washington State should not recognize a property interest in one’s
own biological materials used in research. Because conversion of property is a strict liability tort,
extending property rights to include organs could stifle medical research. Laboratories doing
research receive a large volume of medical samples and cannot be expected to know or discover
whether somewhere down the line their samples were illegally converted. Furthermore, the
Appellant’s interest in his bodily integrity and privacy are protected by the requirement of
informed consent, which must also inform about economic interests. The argument is based on
the case of Moore v Regents of the University of California.
ARGUMENT
Washington State should or should not recognize a property interest in one’s own biological
materials used in research.
THESIS
I. WASHINGTON STATE CURRENTLY RECOGNIZES A PERSON’S
PROPERTY RIGHT TO DONATE AND SELL CERTAIN BIOLOGICAL
MATERIALS.
In the current case, the Appellant did not donate and sell his biological materials to
the Washington State. Rather, he had them removed with the intention to discard
them since they were infected with cancer. Thus not entitled to the same since his
initial intention was to have them disposed of.
In the case of Moore v Regents, Murray, while representing Dr. Golde stated that it
was impossible to assess the potentila research value of the tissue after it was
removed and that there was no proof of the hospital of physical misrepresented
themselves to Moore. He stated that State statutes allow the scientific use of discarded
tissue.
His precise words were:
“Absolutely nothing was concealed from this man, there was no intent to trick
him. He instructed the hospital to take it out since it had cancer. Now here you
are saying you can’t do any research unless you pay me.” 1
From the preceding, it is clear that one can not assert property rights over discarded
tissue Hence the Appellant can not claim that the Respondent acquired profit using
his tissues. He consented to the surgery hence ceded his property rights in relation to
the excised tissue infected with cancer.
II. DISCARDED, EXCISED TISSUE SUBSEQUENTLY USED IN MEDICAL
RESEARCH DOES NOT GIVE RISE TO A PERSONAL PROPERTY
INTEREST.
Moore v. Regents of the University of California was a landmark Supreme Court of
California decision. Filed on July 9, 1990, it dealt with the issue of property rights to
one’s own cells taken in samples by doctors or researchers.
In 1976, John Moore was treated for hairy cell leukemia by physician David Golde, a
cancer researcher at the UCLA Medical Center. Moore’s cancer cells were later
developed into a cell line that was commercialized by Golde and UCLA.
The California Supreme Court ruled that a hospital patient’s discarded blood and
tissue samples are not his personal property and that individuals do not have rights to
a share in the profits earned from commercial products or research derived from their
cells. 2 Following this decision, most U.S. courts have ruled against family members
who sue researchers and universities over the "improper commercialization" of their
dead family member’s body parts.
1 Moore v Regents of the University of California, 51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P. 2d 479
2 Sandra Blakeslee (July 10, 1990). "Patient’s Right to Tissue Is Limited". New York Times.
Likewise, the Appellant’s tissues were contaminated or infected with cancer hence
amounting to discarded blood and tissue samples.
III. IT IS GOOD SOCIAL POLICY TO RECOGNIZE A PROPERTY INTEREST
IN ONE’S OWN BIOLOGICAL MATERIALS.
The court in Moore v Regents looked at the policy behind having Moore’s cells
considered property. Because conversion of property is a strict liability tort, the court
feared that extending property rights to include organs would have a chilling effect on
medical research. Laboratories doing research receive a large volume of medical
samples and cannot be expected to know or discover whether somewhere down the
line their samples were illegally converted. Furthermore, Moore’s interest in his
bodily integrity and privacy are protected by the requirement of informed consent,
which must also inform about economic interests. 3
Therefore, in the current instance, the Respondent adhered by the social policy basis
of respecting one’s biological interest by informing the Appellant of the extent of
infection of his tissue before excising the same. The Appellant thus consented to the
surgery hence giving up his rights over his tissue.
IV. IT IS NOT GOOD SOCIAL POLICY TO ESTABLISH A NEW PROPERTY
INTEREST IN DISCARDED, EXCISED TISSUE SUBSEQUENTLY USED
AND NEEDED IN MEDICAL RESEARCH.
As was held in the case of Moore v Regents of the University of California, it would
be unreasonable and bad social policy to establish a new property interest in
discarded, excised tissue subsequently used and needed in medical research. Allowing
the extension of such rights would stifle research and deny the state the chance to
3 Ibid
further research. This is based on the fact that once an organ is excised and discarded
by the owner, he loses any property rights over it making recovery impracticable.
Further, the state can not market the excised organs hence leaving them the sole
option of utilizing them in conducting research.
V. THIS COURT SHOULD EXTEND A PERSON’S PROPERTY INTEREST TO
THE BIOLOGICAL MATERIALS USED IN MEDICAL RESEARCH.
Justice Arabian wrote a concurring opinion in the case of Moore v Regents 4 , stating
that the deep philosophical, moral and religious issues presented by the case could not
be decided by the court.
Justice Broussard concurred in part and dissented in part. Justice Mosk dissented,
stating that Moore could have been denied some property rights and given others. At
the very least, Moore had the "right to do with his own tissue what the defendants did
with it". That is, as soon as the tissue was removed, Moore had at least the right to
choose to sell it to a laboratory or to have it destroyed. Thus, there would be no
necessity to hold labs strictly liable for conversion when property rights could be
broken up, to allow Moore to extract a significant portion of the economic value
created by his tissue. Furthermore, to prove damages from informed consent, Moore
would have to have proved that if he were properly informed, neither he, nor a
reasonable person would have consented to the procedure. Thus, Moore’s chances of
proving damages through informed consent were slim. Also, he could not consent to
the procedure but reserve the right to sell his organs. Finally, Moore could sue only
his doctor, nobody else, for failing to adequately inform him. Thus, he was unlikely to
4 Ibid 1
win, could not extract the economic value of his tissue even if he had refused consent,
and could not sue the parties that might be exploiting him.
However, in the present instance, the Respondent had no intention of exploiting the
Appellant. In as much as the Respondent could be extend the Appellant’s property
rights over his tissues to the medical research, the Appellant gave up his rights when
he consented to the surgery.
VI. CREATING A NEW CAUSE OF ACTION IN A PROPERTY INTEREST IS
BETTER LEFT TO THE LEGISLATURE.
Given the preceding arguments, it would be unreasonable to require the Respondent
to extend property rights to medical research over tissues that were discarded, excised
tissue subsequently used and needed in medical research. Hence the resort to leaving
the creation of such cause of action in property interest to the legislature. Delving into
it and allowing the courts to adjudicate the same would not only open a floodgate to
litigation but also infringe on the legislature’s function of making the law.
CONCLUSION
From the preceding arguments, it is clear that the Appellant can not claim property rights
over the excised infected tissue.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
WASHINGTON
JOHN MALECK, ) CASE No. C 513755
Plaintiff ) COMPLAINANT For DAMAGES and
DECLARATORY JUDGMENT
Vs
THE REGENTS OF THE UNIVERSITY )
OF ASHINGTON, SHIRLEY CHAN, M.D,: )
MARIA MARTA, M.D.; BIOMED )
INSTITUTE, INC, an Idaho Corp. )
Defendants )
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