'Abandonment' and the acquisition of property rights in separated human biomaterials. (September 2016)

• Record Type: Journal Article
• Authors: Maddox, Neil
• Is Part Of: Medical law international. Volume 16:Number 3/4(2016)
• Page Start: 229
• Page End: 251
• Publication Date: 2016-09
• Subjects: Abandonment -- human biomaterials -- property rights -- biotechnology -- waste tissue; Medical laws and legislation -- Periodicals; Legislation, Medical -- Periodicals; 344.041
• DOI: 10.1177/0968533216679486
• Languages: English
• ISSNs: 0968-5332

Abstract

This article 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.